CLIENT UPDATE 2016 APRIL INTELLECTUAL PROPERTY 1 © Rajah & Tann Singapore LLP Intellectual Property Update: Singapore, Malaysia and Indonesia We have compiled a selection of recent published cases relating to intellectual property in Singapore, Malaysia and Indonesia. For more details on how these cases may affect your business, feel free to get in touch with any of the partners in the relevant jurisdictions for a chat, or arrange a meeting if you will be attending the International Trademark Association meeting in Orlando this year. Singapore Global Yellow Pages Ltd v Promedia Directories Pte Ltd  SGHC 9 The plaintiff, Global Yellow Pages Ltd (“GYP”) is a producer of telephone directories, of which the Business Listings, the Yellow Pages Business, the Yellow Pages Consumer and the Internet Yellow Pages are relevant to this case. The defendant Promedia Directories Pte Ltd (“Promedia”) is the producer of the telephone directory, the Green Book. GYP alleged that Promedia infringed GYP’s copyrights in, inter alia the individual subscriber listings and the subscriber listings in their entirety. The High Court found that while Promedia had reproduced many of GYP’s individual listings, referenced the Yellow Pages Business and the Yellow Pages Consumer to research in new classifications for the Green Book, and keyed and scanned all the listings in the Business Listings into a database, Promedia was nonetheless not guilty of copyright infringement. For the individual subscriber listings, the information contained was largely coterminous with the expression, as the listing must necessarily provide information about the subscriber’s name, telephone number, email address etc. Therefore, copyright could not subsist as there was insufficient creativity involved in selecting or arranging the fields of information to be included in the listing. Hence, even though some listings were copied wholesale, without subsistence there could be no infringement of copyright. For the subscriber listings in their entirety, the Court held that copyright subsisted in the Yellow Pages Business and Consumer and the Internet Yellow Pages because the requisite level of creativity was met through the choice of classifications and filters which affected how the information was presented. However, there was no infringement as there were sufficient differences in Promedia’s method of selecting and classifying the material in its directories, such that there was no reproduction of the substantial aspects of GYP’s original works. For the Business Listings, no copyright subsisted as it was an exhaustive directory which did not require exercise of intellectual choice, and its arrangement by alphabetical order was a commonplace technique. Therefore, even though the entire Business Listings was reproduced, without subsistence there could be no infringement. This case is notable for clarifications on several points of law. Firstly, the Court considered various conflicting Singapore authorities, and concluded that s7A of the Copyright Act confined protection for databases and compilations to original expression or creativity arising from the author’s selection and arrangement of the individual components of the compilation. S7A did not protect individual components of the compilation as they generally could not be said to have originated from the compilation’s author. The individual components could however separately qualify for copyright on their own merits. For the entire subscriber listings, the Court acknowledged that much investment and effort had gone into obtaining and verifying the accuracy of the subscribers’ information. While this would be protected from reproduction in the UK and the EU under the sui generis database right, mere effort and investment without original expression was not protectable in Singapore. The Court declined to augment the statutory originality requirement to fill this lacuna, believing it a matter best left to Parliament. It also noted that while Promedia had saved itself much time and effort by referring extensively to GYP’s directories to verify the accuracy of the Green Book’s listings and to conduct research into its own classifications, mere referencing of works to obtain information was not an CLIENT UPDATE 2016 APRIL INTELLECTUAL PROPERTY 2 © Rajah & Tann Singapore LLP infringement of copyright as there needed to be a reproduction of a substantial part of GYP’s selection and arrangement. Polo/Lauren Co LP v US Polo Association  SGHC 32 The plaintiff, Polo/Lauren (“PRL”) is a company selling, inter alia luxury apparel, and is the owner of the Opposition Mark registered in Class 9 for “spectacles, spectacle frames, lenses, sunglasses and parts and fittings therefor”. The defendant United States Polo Association (“USPA”) is the governing body of the sport of polo in the US, and has expanded into the business of selling consumer products such as eyewear, luggage and clothing. It applied to register its Application Mark in Class 9 as well. PRL opposed USPA’s application for registration on the grounds of, inter alia confusing similarity under s8(2)(b) of the Trade Marks Act (“TMA”). The Intellectual Property Office of Singapore (“IPOS”) adjudicator dismissed the opposition, and this decision was upheld on appeal to the High Court. Opposition Mark (PRL) Application Mark (USPA) The High Court applied the test laid down in Staywell Hospitality Group Pty Ltd v Starwood Hotels & Resorts Worldwide Inc (the “Staywell test”)  1 SLR 911. In doing so, it found that the marks did not have a high degree of visual similarity, due to the different numbers of polo players and their positions, as well as the presence of prominent text in the Application Mark. Notably, after considering the various conflicting authorities, the Court took the view that aural similarity could not be compared where one of the marks had no aural component. On the whole, the low degree of visual similarity meant that even though the marks were conceptually identical, overall the marks were similar only to a very small degree. Although the goods were identical, in the overall assessment it was found that there was no likelihood of confusion. This was because eyewear was highly personal, bought infrequently and not something that would be purchased in a hurry. The Court hence concluded that the consumer would pay a high level of attention to the differences between the marks. Christie Manson & Woods Limited v Chritrs Auction Pte. Limited  SGIPOS 1 The opponents, Christie Manson & Woods Limited (“Christie’s”) are a famous UK auction house specialising in auctions of valuable collectibles. The applicants, Chritrs are a Chinese auction house, and have been in operation for several years. Christie’s filed an opposition to Chritrs’s proposed registration of its trademark. The marks in dispute are displayed below: CLIENT UPDATE 2016 APRIL INTELLECTUAL PROPERTY 3 © Rajah & Tann Singapore LLP In dismissing the majority of the claims, the IPOS Registrar made several key findings. Firstly, he declared that the opposition based on confusing similarity between marks T9102985J (“Opposition Mark 1”) and T1202934H (“Application Mark”) failed due to the disclaimer in Opposition Mark 1 that states that Opposition Mark 1 gives no exclusive right to the word “Christie’s”. The Registrar then applied the Staywell test for confusing similarity to the Application Mark and mark T9600045A (“Opposition Mark 2”), and found that there was low to medium degree of visual similarity between the marks. On the basis that the Application Mark was an unpronounceable invented word, the Registrar found that there was no aural or conceptual similarity with the pronounceable surname in Opposition Mark 1. Therefore, on the whole, it was found that the marks had a very low degree of similarity. The Registrar also found that the services that the marks were registered for were dissimilar as selling real estate via auction fell within Class 35 for auctioneering services, not Class 36 for real estate services, as real estate was not ordinarily sold through auction. The Registrar also held that there was no likelihood of confusion, due to the low similarity between marks and the fact that in auctions, the end user is usually attentive to the identity of the service provider. Based on these findings, he dismissed Christie’s opposition on the grounds of ss8(2)(b), 8(4)(b)(i), 8(4)(b)(ii)(A), 8(4)(b)(ii)(B), 8(7) and 7(6) of the TMA. With regard to the opposition on the grounds of bad faith, the Registrar held that Chritrs’s use of its Chinese name (“佳士德”) together with the Application mark must be taken into account. He considered that it made no sense for the Applicants to invent an unpronounceable name for its business, that six of the letters in the Application Mark were the same as Opposition Mark 2, the first four letters were identical, the Chinese names were phonetically identical, the first two Chinese characters were identical, and the Opponent’s Chinese name was not a translation or a transliteration of CHRISTIE’S, making the Applicant’s choice of an identical Chinese name all the more unbelievable. Chritrs’s sole director also skipped the hearing at the last minute, allowing an adverse influence to be drawn against the Applicants. On the whole, the Registrar allowed the opposition on the grounds of bad faith under s7(6) of the TMA. Of particular note is that the Registrar considered the question of whether he was empowered to allow an opposition to only part of a specification of goods/services. The plain wording of TMA s8(1) and 8(2) suggested that he was not, especially when juxtaposed with TMA s22(6) for revocation and TMA s23(9) for invalidation which expressly provided for partial opposition. However, he felt that there seemed to CLIENT UPDATE 2016 APRIL INTELLECTUAL PROPERTY 4 © Rajah & Tann Singapore LLP be sound legal and policy bases for supporting partial oppositions. As the Registrar was not required to make a final decision on this point, he left the issue open for consideration in future cases. The Registrar was more cavalier when dismissing Christie’s submission that disclaimers were only relevant in the assessment of confusing similarity for infringement proceedings and not opposition proceedings, due to TMA s30(2) referring only to s26 and not s8 of the TMA. After considering conflicting authorities which included local and UK case law and the UK Trade Marks Act (from which the Singapore provisions were derived from), the Registrar took the position that disclaimers applied equally to both sets of proceedings, and that an opposition cannot succeed where the resemblance between the marks in issue was only attributable to the presence of a disclaimed element in the earlier trade mark. It is likely that the two issues will arise again, and we look forward to their discussion in a higher court. Malaysia Maestro Swiss Chocolate Sdn. Bhd. & Ors v Chocosuisse Union Des Fabricants Suisses De Chocolate & Ors & Another Case  1 LNS 38 The 1st respondent, Chocosuisse Union Des Fabricants Suisses De Chocolat (“Chocosuisse”) is a cooperative society formed in Switzerland. It is responsible for the protection of the worldwide reputation and goodwill of its members, which are chocolate manufacturers in Switzerland. The 2nd and 3rd respondents are chocolates manufacturers in Switzerland, and are members of Chocosuisse. They have been exporting and selling Swiss-made chocolates in Malaysia. The respondents instituted an action against the appellants for extended passing-off and unlawful use of a geographical indication under the Geographical Indications Act 2000 (“GIA”) on the basis that the appellants had used the words “Maestro SWISS” in relation to chocolates and chocolate-related products that had been made in Malaysia and did not originate from Switzerland. In a landmark decision the Federal Court ruled in favour of the respondents. The Court held that the use of “Maestro Swiss” indicated that the products belonged to the known class of chocolates produced in Switzerland, which had a reputation of high quality. This was despite the fact that the appellants’ product packaging made it clear that the products were made in Malaysia and it contained information on the Malaysian manufacturer. The Court also ruled that “Maestro Swiss” was a geographical indication under the GIA and the appellants were liable for unlawful use of the same under the GIA. Mesuma Sports Sdn Bhd v Majlis Sukan Negara, Malaysia; Pendaftar Cap Dagangan Malaysia (Interested Party)  9 CLJ 125 The respondent, Majlis Sukan Negara, Malaysia (“MSN”) is a statutory body which had been entrusted by the Ministry of Youth and Sports with all responsibilities over the rights, ownership and management of a tiger stripes design worn by Malaysian athletes who had taken part in the SEA Games. The appellant, Mesuma Sports Sdn Bhd (“Mesuma”) was appointed as a contract supplier by the MSN to produce sports attire bearing the tiger stripes design to be worn by Malaysian athletes for the 2006 Asian Games. Sometime in 2009, Mesuma applied for registration of the design under the Trade Marks Act 1976 (“TMA 1976”), claiming to be the first user of the tiger stripes design as a trade mark in the course of trade. The application was accepted and the design was registered in the name of Mesuma in 2011. MSN filed an action against Mesuma for passing-off and invalidation of the trade mark registration. The Federal Court ruled in favour of MSN. The Court held that Mesuma’s registration of the design as its trade mark was wrongfully obtained as the appellant was not the rightful owner of the design. A contract manufacturer (such as Mesuma) did not acquire a proprietary right over a trade mark. Furthermore, MSN was the first user of the mark “in the course of trade” by appointing contract manufacturers or suppliers of the goods in question. Hence, MSN was the rightful owner of the design for the purposes of common law and the right to apply to register the design under the Act. The Court also ruled that for the purposes of passing-off, goodwill could be established by non-commercial, non- CLIENT UPDATE 2016 APRIL INTELLECTUAL PROPERTY 5 © Rajah & Tann Singapore LLP profit or even charitable entities. Thus, there was no legal impediment to MSN establishing goodwill in its activities. Yeohata Machineries Sdn Bhd & Anor v Coil Master Sdn Bhd & Ors  2 CLJ 414 The 1st appellant, Yeohata Machineries Sdn Bhd (“YM”) is a manufacturer of mosquito coil productionrelated machines and facilities, and owned a patent in respect of a production machine known as the Yeohata. The 2nd appellant, Quality Coils Industries Sdn Bhd (“QCI”) was licensed to manufacture the Yeohata and to deal with all confidential information relating to the apparatus and process of the Yeohata. The 1st respondent, Coil Master Sdn Bhd (“Coil Master”) produces mosquito coil manufacturing equipment. The 2nd respondent was a director and marketing manager in a company which was appointed as the marketing arm of QCI. The 3rd respondent was a research and development engineer of QCI. The 2nd and 3rd respondents incorporated Coil Master to manufacture and sell a competing mosquito coil-making machine. The appellants filed an action against the respondents for, among others, patent infringement and breach of confidential information. The respondents counterclaimed to invalidate YM’s patent. The Court of Appeal affirmed the High Court’s decision in dismissing the appellants’ action against the respondents but reversed the High Court’s decision in allowing the respondents’ counterclaim. The Court of Appeal held that there was no evidence to show that Coil Master’s machine infringed the patent. The appellants’ own evidence showed that the appellants’ machine functioned differently and was better than that of the respondents. The Court also found that there was no evidence to show that the appellants had imparted confidential information to the 2nd and 3rd respondents. Further, the respondents’ contention that the patent was not novel as it was anticipated by prior art was unsubstantiated. The fact that there was prior art for some of the features of the machine did not preclude an application for patent covering the other features of the machine without prior art. Public Performance Malaysia Sdn Bhd & Anor v PRISM Bhd  1 CLJ 687 The 1st plaintiff, Public Performance Malaysia Sdn Bhd (“Public Performance”) was a wholly-owned non-profit subsidiary of the Recording Industry Association of Malaysia (“RIM”) and was a declared licensing body under the Copyright Act 1987 (“CPA 1987”). It had the mandate and responsibility to collect royalties on behalf of recording companies which were members of RIM from those granted licenses to publicly perform sound, music videos and/or karaoke recordings of authorising RIM members. Public Performance entered into an agreement with PRISM Sdn Bhd whereby Public Performance was authorised by the latter to issue licenses and collect royalties for the public performance, broadcasting and communication to the public of recordings of performances of PRISM Sdn Bhd’s members. The agreement was subsequently terminated. After the termination, the defendant, PRISM Bhd, a company offering similar services as Public Performance, obtained Public Performance’s licensing documents from PRISM Sdn Bhd and used these documents in connection with its licensing activities. Public Performance’s action for copyright infringement and passing-off was allowed by the High Court. The Court held that Public Performance had established that the defendant had infringed its copyright in the licensing documents by reproducing and/or causing reproduction of the same as there was substantial similarity in the format used, the headings, the layout and the wordings appearing in them. The Court further held that the elements for an action in passing-off were established. The public and music users recognised and knew that Public Performance had acted as the authorised licensing body for RIM and/or RIM members; RIM and/or RIM members had not, at any time, authorised or permitted the defendant to negotiate and/or grant licenses for the public performance of RIM members’ recordings; and the defendant’s misrepresentations had caused confusion and deception to music users and Public Performance’s licensees, and further caused inconvenience, interference, prejudice, injury and damage to Public Performance. CLIENT UPDATE 2016 APRIL INTELLECTUAL PROPERTY 6 © Rajah & Tann Singapore LLP INDONESIA Inter IKEA System B.V. vs PT. Ratania Khatulistiwa, DK  264 K/PRdt.SusHKI/2015 The defendant, Inter IKEA System B.V. (“IKEA”) is a well-known flat-pack household furnishings retailer. IKEA registered its trademarks for Classes 20 and 21 in 2010 and 2006 respectively. In 2013, the plaintiff, PT. Ratania Khatulistiwa (“PTRK”), a rattan furniture manufacturer, filed a claim in the Commercial Court against IKEA and the co-defendant, the Directorate General of Intellectual Property (“DGIP”) to have IKEA’s registered trademarks cancelled and to order the DGIP to register the PTRK’s “IKEA” trademarks for Classes 20 and 21. PTRK primarily relied on Article 61(2)(a) of the Trademark Law, which provides that a trademark may be cancelled if it is not used for three consecutive years, and Article 63, which provides that a petition for cancellation (under Article 61(2)) may be brought by any interested third party. PTRK claimed that it was in fact such an interested third party as it wished to register similar trademarks under its own name and that, further, it was an Indonesian company while IKEA was a foreign company. IKEA argued that its products had been sold and distributed to a number of individuals and companies in Indonesia at that time and that the results of a survey commissioned by PTRK were inaccurate and absolutely misleading. Furthermore, IKEA argued that its trademarks were well-known marks both internationally and in Indonesia, and accordingly should be protected against potential trademark squatters and those acting in bad faith. The Commercial Court rejected all of IKEA’s arguments and granted PTRK’s application in full. It held that the pertinent IKEA trademarks should be cancelled for lack of use and that the similar trademarks of the Respondent/Plaintiff should be registered by the DGIP. The Supreme Court, in a brief, controversial decision devoid of any legal reasons, rejected IKEA’s arguments and upheld the Commercial Court’s decision. However, there was a dissenting opinion from Justice I Gusti Agung Sumanatha, who agreed with IKEA and the DGIP that the IKEA trademarks were well-known and thus entitled to protection. Prada S.A. v PT. Manggala Putra Perkasa  449 K/Pdt.Sus-HKI/2014 The plaintiff, Prada S.A. is an Italian luxury fashion company and the owner of PRADA trademarks. The defendant, Manggala Putra Perkasa (“Manggala”) is an Indonesian company and the assignee of registered PRADA trademarks in Indonesia from a different individual owner, whose other PRADA trademark registrations were successfully challenged by Prada S.A. in the Supreme Court. Prada S.A. applied to cancel Manggala’s registered trade marks in classes 18 and 25 using the well-known trade mark defense. Without going into the merits of the case, the Commercial Court ruled against Prada S.A. on the grounds that the claim was sent to the Defendant at the wrong address (incorrect sub-district), evidenced by the statement of the Bailiff who served summons at three different occasions. The Court had suggested that the Plaintiff revise the Defendant’s address in its claim, but the suggestion was rejected by the Plaintiff as the address was consistent with that stated in the trademark certificate. Hence, the Court decided to dismiss the Plaintiff’s claim due to a procedural defect. The Supreme Court agreed that based on civil procedure, if a claim was found to have procedural defects, the panel had no reason to examine the substantive issues and hold a testimony or evidence hearing. Merck KGaA v PT. Phapros Tbk  409 K/Pdt.Sus-HKI/2015 The plaintiff, Merck KGaA (“Merck”) is a well-known multinational pharmaceutical company located in Germany and the sole owner of “Neurobion + Logo” trademark registration in Class 5. The defendant, Phapros Tbk (“Phapros”) is an Indonesian pharmaceutical public company and the owner of the “Bioneuron” trademark registration in Class 5. Merck sought to invalidate Phapros’s trade mark on the grounds of bad faith, arguing that Phapros had emulated Merck’s similar design product and trade mark as Phapros’s mark was basically a version of Merck’s trade mark in reverse. Merck argued that there was a likelihood that Phrapos’s trade mark would harm Merck’s reputation. CLIENT UPDATE 2016 APRIL INTELLECTUAL PROPERTY 7 © Rajah & Tann Singapore LLP The Commercial Court ruled in favour of Merck, holding that there were many similarities between Phapros’s mark and Merck’s well-known trade mark, and ruled that Phapros’s trade mark should be cancelled and removed from the Trademark Gazette. This was upheld by the Supreme Court. 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