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Last Update: 04 Nov 2016
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FAQ

Copyright

1. What are the exclusive rights of the owner?
2. What is copyright?
3. What is the duration for copyright protection?
4. What works get copyright protection?
5. What are the ways to prove ownership of copyright?
6. What are the qualifications for protection of copyright?
7. How owns copyright?
8. Can copyright be transferred?
9. What are the exceptions to the exclusive right granted by the Copyright Act 1987 to the user of the work?
10. What right can be utilized by the owner of copyright for infringement of moral right?

Industrial Design

1. What is an industrial design?
2. Who can apply for design registration?
3. What is the duration for registering an industrial design?
4. How extensive is industrial design protection?
5. What is the duration for protection?
6. What qualifies an industrial design for registration?
7. Does one have to register an industrial design to get a protection?
8. What are benefit for registered industrial design?
9. How to claim priority date of an earlier foreign application?
10. What is non-registrable design?
11. When will an Industrial Design be manufacture or sell?
12. When an application should be filed?

Geographical Indication

1. What is the difference between geographical indication and trade mark?
2. What is the duration of protection of geographical indication?
3. Can individual register a geographical indication?
4. What is Geographical Indication?
5. Does Malaysia have product that qualifies to be registered under Geographical Indications Act 2000?
6. Does geographical indication applicable only to an agricultural product?
7. Does registration of geographical indication compulsory?

Trade mark

1. What is a Trade Mark?
2. What happens if the trade mark is not registered in an action for infringement?
3. How does one secure protection abroad?
4. What is the duration of a trade mark protection?
5. What are the functions of trade marks?
6. When can an application for registration of a trade mark be made?
7. Is it compulsory to register trade mark ?
8. Who may file trade mark applications?
9. Does Malaysian registration for trade mark give protection abroad?
10. Why is trade mark registration important?

Patent

1. What is patent?
2. What rights does patent owner have?
3. Can the applicant get protection after the invention is made public before filing a patent application?
4. Where can the applicant seek assistance in preparing IP application?
5. What happens after the patent expires?
6. How can an applicant get protection for his invention in other countries?
7. What is a utility innovation?


What are the exclusive rights of the owner?

The copyright owner has the exclusive right to control the whole or substantial part of the work especially:- The reproduction in any material form (including making photocopies, recording and others); The communication to the public; The performance, showing or playing to the public; The distribution of copies to the public by sale or other transfer pf ownership; and The commercial rental to the public.

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What is copyright?

Copyright is the exclusive right given by law for a determinable time period to the author of the work to control the use of the work in Malaysia.

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What is the duration for copyright protection?

For literary, music and artistic works, copyright subsist during the life of the author and 50 years after the death; For sounds recording, films and broadcasts, copyright subsist 50 years from the year following the publication of the work; and For published edition, copyright subsist 50 years from the year following the year of edition was first published.

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What works get copyright protection?

The following works are protected:- Literary works; Musical works; Artistic works; Films; Sounds recordings; Broadcasts; and Derivative works.

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What are the ways to prove ownership of copyright?

To prove ownership of copyright, the owner can either:- Make a Statutory Declaration in accordance with the Statutory Declaration Act 1960; Self address the work in a sealed envelope or make a Voluntary Notification to MyIPO

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What are the qualifications for protection of copyright?

Sufficient effort has been expanded to make the work original in character; The work has been written down, recorded or otherwise reduced into material form; The author is a qualified person; and The work is made in Malaysia or the work is first published in Malaysia.

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How owns copyright?

Ownership of copyright is dependent on the following:- The work is produced under a contract of service; Copyright is owned by the employer. The work is produced under a contract for service; Copyright is owned by the author. Commissioned work Copyright is owned by the person who commissioned the work.

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Can copyright be transferred?

Copyright is transferable by assignment, testamentary disposition and by operation of law.

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What are the exceptions to the exclusive right granted by the Copyright Act 1987 to the user of the work?

Usage of the work by way of fair dealing for the following purpose accompanied by an acknowledgement of the title of the work and authorship is allowed:- non-profit research; private study; and Review or the reporting of current event.

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What right can be utilized by the owner of copyright for infringement of moral right?

The owner can sue inter alia for statutory damages and injunction.

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What is an industrial design?

An industrial design is the overall appearance of an article or a product. The design may consist of three dimension features such as the shape and configuration of an article, or two dimension features, such as pattern and ornamentation. The design features must be applied to an article by an industrial process or means of which, the features in the finished article gives it a unique appearance.

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Who can apply for design registration?

Only the owner of the design may apply to register the design. The owner may authorize an agent to file an application on his behalf. Where an applicant's ordinary residence or principal place of business is outside Malaysia, the applicant shall appoint an agent registered in the Register of Industrial Designs Agent.

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What is the duration for registering an industrial design?

An application will be registered within 8 months from the date on which a completed application form, documents and prescribed fees are received. The duration could be extended to 14 months due to non compliance of requirements such as incomplete documents and fees not paid.

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How extensive is industrial design protection?

An industrial design registered in Malaysia is only protected in Malaysia. In order to have your design protected in other countries who are members of the Paris Convention and to claim priority in Malaysia, application for registration will have to be filed within 6 months from the date of filing in Malaysia.

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What is the duration for protection?

A registered industrial design is given an initial protection period of 5 years from the date of filing and is extendable for a further four consecutive terms of 5 years each. The maximum protection period is 25 years.

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What qualifies an industrial design for registration?

To be eligible for registration, an industrial design must be new at the date an application for registration is filed. A design is considered new only if it has not been made available or disclosed to the public in any way whatsoever in Malaysia or elsewhere (worldwide) before the filing date of application. It also should not be on the record of the Industrial Design Register.

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Does one have to register an industrial design to get a protection?

Under industrial designs law, there is no protection without registration. An industrial design need to be registered to be eligible for protection. The owner of a registered industrial design has the exclusive rights over his industrial design.

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What are benefit for registered industrial design?

The owner of a registered design has the exclusive right to make, import or sell or hire out any article to which the design has been applied. Other users should obtain the consent of the rightful owner before using the design. The owner of a registered design has the right to take legal action against an infringer within 5 years from the act of infringement.

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How to claim priority date of an earlier foreign application?

The applicant needs to make the claim when filing the application where the date of priority and country should be stated. Priority date should be claimed within 6 months from the foreign filing. Priority documents and their translations should be furnished as evidence.

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What is non-registrable design?

It does not have a clear aesthetic appearance. It is a method or principle of construction. Designs features dictated solely by function. Integral parts which consist features that dependent upon the appearance of another article. Differs only in immaterial details or in features commonly used in the relevant trade (trade variants). The designs those are contrary to public order or morality.

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When will an Industrial Design be manufacture or sell?

At anytime time after the application has been filed. Applicants may also exploit their industrial design in the foreign markets. However they would have to obtained protection in relevant countries.

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When an application should be filed?

As claims are based on rules of ‘first to file', filing of an industrial design should be made at the earliest possible time or before an article is disclosed to the public. Prior disclosure will eliminate the novelty of the design. Extreme care should be exercised to ensure secrecy of the design.

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What is the difference between geographical indication and trade mark?

Trade marks is a mark which distinguishes the goods and services of one trader from those of another. It gives its owner the right to exclude others from using the trade marks. On the other hand, a geographical indication indicates where the goods are produced and has characteristics that are attributable to the place of the geographical origin. In addition, the geographical indication goods may have different trade marks amongst the traders as long as the geographical indication goods produce by the registered proprietor of geographical indication.

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What is the duration of protection of geographical indication?

A registered geographical indication is protected for ten years from the date of filing and is renewable for every ten years as long as it is still in use.

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Can individual register a geographical indication?

Registration of geographical indication is based on an affiliation ownership concept for the producers who are carrying on an activity in that specified geographical area and not an individual ownership concept. Geographical indication can also be registered by the competent authority such as local authority, government agency, statutory body; and trade organization or association.

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What is Geographical Indication?

Geographical Indications Act 2000 defines geographical indication as an indication which identifies any goods as originating in a country or territory, or a region or locality in that country or territory, where a given quality, reputation or other characteristic of the goods is essentially attributable to their geographical origin.

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Does Malaysia have product that qualifies to be registered under Geographical Indications Act 2000?

Malaysia has a number of goods that can be registered as geographical indications. These goods have been commercially exploited at local and international market for example ‘Sarawak Pepper', which is a pepper-based product produce in Sarawak. This pepper has gained reputation and recognition at international level due to the quality of the pepper.

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Does geographical indication applicable only to an agricultural product?

Geographical indication is not limited to agricultural product. It can also be used on natural product such as Langkawi Gamat and any product of handicraft like Terengganu Songket, Kelantan Batek and food products such as Papar Belacan and Kelantan Budu.

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Does registration of geographical indication compulsory?

Registration of geographical indication is not compulsory. However, registration of geographical indication is encouraged to protect the interest of producer and consumer. The registered proprietor of geographical indication has the exclusive rights to exploit the geographical indication and gains recognition at domestic and international level.

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What is a Trade Mark?

A Trade Mark is a mark which distinguishes the goods and services of one trader from another. A mark includes words, logos, pictures, names, letters, numbers or a combination of these. A Trade Mark is used as a marketing tool to enable customers to choose a product or services in the market place.

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What happens if the trade mark is not registered in an action for infringement?

The owner cannot commence any action under the provisions of the Trade Marks Act 1976 . However, actions may be instituted under the common law principals whereby the trade mark owner has a duty to convince the court that the infringing act had mislead the public and the infringing goods or services may be mistaken as his goods or services. This action is very contentious and costly.

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How does one secure protection abroad?

An applicant may file trade mark application separately in each intended country. However, a Malaysian application may be used as a basis for Priority Date Claim in the countries which are party to the Paris Convention or World Intellectual Property Organization (WIPO).

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What is the duration of a trade mark protection?

The period of protection is 10 years, renewable for a period of every 10 years thereafter.

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What are the functions of trade marks?

Origin Function - A trade mark indicates the source of goods or services in the market place. Choice Function - A trade mark facilitates consumers in making choices of goods or services. Quality Function - Consumers have preference to choose a particular trade mark for its known quality. Marketing Function - Trade marks act as an effective medium of advertising for producer in marketing their goods or services. Economic Function - A trade mark which is well known with a quality or reputation may be licensed or assigned as an economic asset.

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When can an application for registration of a trade mark be made?

An application for trade mark may be filed at any time immaterial of the fact whether the trade mark has been used, being used or proposed to be used.

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Is it compulsory to register trade mark ?

Registration of trade mark is indeed important to obtain exclusive rights for purposes of exploitation and commencing infringement actions. However, registration is not compulsory.

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Who may file trade mark applications?

Any person who is the owner of trade mark using the trade mark or proposes to use the trade mark may apply for registration in Malaysia. The owner may be an individual, partnership, company or organization.

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Does Malaysian registration for trade mark give protection abroad?

No, trade mark protection is territorial in nature.

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Why is trade mark registration important?

Exclusive Right - Registered trade mark owners are conferred exclusive right to use their marks in trade. They also have the right to take legal action for infringement under the Trade Marks Act 1976 against others who use their marks without consent. They can also lodge complaints to the Enforcement Division of Ministry of Domestic Trade and Consumer Affairs (MDTCA) for appropriate actions under the Trade Description Act 1972 . Registration Conclusive - Registration Certificate issued by the Registrar is conclusive evidence of trade mark ownership in the court of law. Furthermore the certificate is an important document of trade mark ownership in the course of trade or business.

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What is patent?

A patent is an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a technical solution to a problem. A patent provides protection for a period of 20 years from the date of filing.

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What rights does patent owner have?

A patent owner has the right to use the patented invention, or may license to other parties to use the invention, or sell the right of the invention to someone else who will then become the new owner of the patent.

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Can the applicant get protection after the invention is made public before filing a patent application?

Yes, provided that the applicant files an application within 12 months of the disclosure.

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Where can the applicant seek assistance in preparing IP application?

The applicant (agency) could seek services from IP Management Section, State Service Modernization Unit, Chief Minister's Department, Level 4, Wisma Bapa Malaysia, Kuching, Sarawak.

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What happens after the patent expires?

Once a patent expires, the owner no longer holds the exclusive rights to the invention.

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How can an applicant get protection for his invention in other countries?

There are two ways in which an invention can be protected in other countries. An applicant can either apply directly to the relevant countries, or use the international patent application system (Patent Cooperation Treaty).

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What is a utility innovation?

A utility innovation is an exclusive right granted for a ‘minor' invention. Utility innovations are protected for an initial period of 10 years which may be extended for another two 5-year terms, providing a total protection period of 20 years.

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