|
|
In a landmark decision, the Federal Court had, on 17 December 2018, held that contract breakers (in that case a commercial bank) cannot rely on exclusion clauses to shield themselves from claims for damages by the counter-party arising from a breach of the contract or negligence. The Federal Court struck down as invalid a common exclusion clause in loan agreements which absolved a commercial bank from "any amounts for loss of income or profit or savings, or any indirect, incidental consequential exemplary punitive or special damages of the Borrower". It was opined that such a clause is manifestly unjust to bank customers and contrary to public policy, and in any event against Section 29 of the Malaysian Contracts Act 1950.
With the above development, it is likely that commercial entities (including banks) are likely to immediately review the standard terms and conditions of their agreements with customers, with specific focus on the extent and wording of exclusion clauses.
The headscarf is a traditional head gear / apparel used in the Middle East as well as by many Muslims around the world. A patent infringement case relating to a ready-to-wear headscarf was filed before the High Court. This case involves the novel issue of the patentability of what is essentially an item of clothing which, on the face, may appear to be a simple invention.
The High Court decided in favour of the patentees. It was held that the patent registered by the patentees is valid and that the Defendants have infringed the registered patent. The decision will have a major impact on other future cases involving similar cheap-to-produce products and / or patentable simple inventions.
This case is significant as it is one of the rare patent infringement suits filed in Malaysia relating to commercial products, in this case a ready-to-wear headscarf. This case also highlights the importance for businesses to register their inventions to protect their rights.
Christopher & Lee Ong successfully acted for the patentees of the Malaysian patent of the headscarf.
In a case involving online marketing and booking of hotels, the High Court ruled that online marketing and online booking platform presence amounts to "use" of a registered trade mark in Malaysia. Millennium & Copthorne International Limited ("M&C") filed a trade mark infringement case against M Hospitality Group Sdn Bhd ("M Hospitality"). M&C is part of the Millennium & Copthorne Group ("M&C Group") which, inter alia, owns and operates hotels, serviced apartments and residences, and hospitality-related services around the world.
Among the hotels operated by M&C Group is the world renowned "M Hotel" which is operating in Singapore and China. The trade mark "M Hotel & Logo" is registered in the name of M&C in Malaysia. M Hospitality operated a 2-3 star budget hotel in Puchong, Malaysia under the name of "M Hotel".
M Hospitality counterclaimed for the removal of the registered "M Hotel & Logo" trade mark from the Register of Trade Marks. M Hospitality also alleged that M&C did not use their "M Hotel" marks in Malaysia under Section 46 of the Trade Marks Act 1976 since there are no physical M Hotels by M&C in Malaysia.
The High Court ruled in favour of M&C. The High Court decided that online marketing and online booking platform presence amounts to "use" of the registered trade mark in Malaysia and thus, dismissed M Hospitality's counterclaim. We believe this is a novel issue as we are not aware of any reported case which has dealt with this legal issue in detail before. Further, M Hospitality was found to have infringed M&C's registered trade mark even though the trade mark registration of M&C comes with a disclaimer on the letter "M" and the word "Hotel".
Christopher & Lee Ong successfully acted for M&C in this case.
The Regional Comprehensive Economic Partnership ("RCEP") is a mega-regional trade agreement currently being negotiated between the 10 ASEAN countries (Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam) and 6 Asia-Pacific countries namely, Australia, China, India, Japan, New Zealand and South Korea (collectively, "RCEP Members"). The RCEP Members collectively have a population of more than 3.5 billion and a combined GDP of around US$27 trillion (32% of Global GDP). Launched initially in November 2012 as an ASEAN initiative, RCEP aims to foster inclusive development, promote innovation, drive sustainable growth and support job generation among the RCEP Members.
RCEP will cover various aspects of the economy such as trade in goods, trade in services, investment, economic and technical cooperation, intellectual property, competition, dispute settlement, e-commerce and small and medium enterprises ("SMEs"). Recognising the importance of being inclusive, RCEP will lower trade barriers and has the potential to enhance trade and investments among RCEP Members.
During the 2nd RCEP Summit ("RCEP Summit") which recently took place in Singapore on 14 November 2018, trade ministers of RCEP Members recognised the significant progress made throughout the year on RCEP negotiations. Recognising the urgency to conclude the RCEP negotiations as soon as practicably possible, the ministers have undertaken the collective commitment to ensure the conclusion of RCEP in 2019.
Almost 62% of Malaysia's trade involves RCEP Members and at least 60% of Malaysia's exports go towards the countries covered by RCEP. Given that 10 out of 16 RCEP Members are considered Malaysia's top trading partners, RCEP will provide Malaysian companies and consumers with increased commercial opportunities and partnerships with other RCEP Members. While Malaysia actively promotes free trade and is generally seen to be an open economy, reduced trade barriers coupled with enhanced market access will no doubt make Malaysia more attractive to foreign investors and encourage cross-border investments amongst RCEP Members.
Click here to read our client update.
In its quest to facilitate greater retail participation for the RM1.3 trillion outstanding bonds and sukuk issued in the local corporate bond and sukuk market, the Securities Commission Malaysia ("SC") announced measures to liberalise its regulatory framework to facilitate such participation. The liberalised framework consists of the new Guidelines on Seasoned Corporate Bonds and Sukuk ("Guidelines") and amendments to Guidelines on Issuance of Corporate Bonds and Sukuk to Retail Investors, the Guidelines on Sales Practices of Unlisted Capital Market Products, as well as Division 2 of the Prospectus Guidelines, which came into effect on 11 October 2018.
The Guidelines set out the requirements for making available, offering for subscription or purchasing, or inviting to subscribe or purchase seasoned corporate bonds or sukuk to retail investors. These Guidelines do not apply to the following:
- asset-backed securities ("ABS") as defined under the Guidelines on Unlisted Capital Market Products under the Lodge and Launch Framework ("LOLA Guidelines"); or
- corporate bonds or sukuk that are structured like an ABS and have the following features but which do not fall under the purview of the LOLA Guidelines:
- where the corporate bonds or sukuk are without recourse to an originator or obligor; or
- where the ability to meet obligations under the senior tranche is enhanced by the less senior tranche.
Corporate bonds or sukuk are eligible to be offered on the secondary market only if they are issued by any of the following:
- a licensed bank, licensed investment bank or licensed Islamic Bank;
- a public listed company whose shares are listed and quoted on a stock exchange;
- Cagamas Bhd;
- Danajamin Nasional Bhd;
- Khazanah Nasional Bhd;
- a public company whose share are not listed and quoted on a stock exchange, provided that:
- the corporate bonds or sukuk are irrevocably and unconditionally guaranteed in full by any of the entities referred to in the above paragraphs (i) to (v) or the Credit Guarantee and Investment Facility; or
- the sukuk are issued by a public company established by any of the entities referred to in the above paragraphs (i) to (ii), with full recourse to be establishing entity in its capacity as obligor.
Please note that whilst the information in this Update is correct to the best of our knowledge and belief at the time of writing, it is only
intended to provide a general guide to the subject matter and should not be treated as a substitute for specific professional advice.
|
|
Christopher & Lee Ong
Level 22, Axiata Tower ,
No. 9 Jalan Stesen Sentral 5
Kuala Lumpur Sentral,
50470 Kuala Lumpur, Malaysia
www.christopherleeong.com
Contacts: Lee Hock ChyeManaging PartnerD +603 2273 1919F +603 2273 8310hock.chye.lee@christopherleeong.comYon See TingPartnerD +603 2278 8311F +603 2278 8322see.ting.yon@christopherleeong.comFiona SequerahPartnerD +603 7958 8310F +603 7958 8311fiona.sequerah@christopherleeong.comLim Wee HannPartnerD +65 62320606wee.hann.lim@rajahtann.comYau Yee MingPartnerD +603 2278 8311F +603 2273 8322yee.ming.yau@christopherleeong.comKuok Yew ChenPartnerD +603 7958 8310F +603 7958 8311yew.chen.kuok@christopherleeong.com| Rajah & Tann Asia is a network of legal practices based in Asia. |
Member firms are independently constituted and regulated in accordance with relevant local legal requirements. Services provided by a member firm are governed by the terms of engagement between the member firm and the client. |
This update is solely intended to provide general information and does not provide any advice or create any relationship, whether legally binding or otherwise. Rajah & Tann Asia and its member firms do not accept, and fully disclaim, responsibility for any loss or damage which may result from accessing or relying on this update. |
|
|
