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©The Sun (Used by permission)
by Jacqueline Ann Surin

PETALING JAYA (May 30, 2007): Despite a proposal to designate one sessions court in Kuala Lumpur to hear intellectual property (IP) infringement cases, much more needs to be done to ensure that such cases are speedily dealt with in Malaysia, said an IP legal expert.

Lawyer Su Siew Ling said signing a Free Trade Agreement (FTA) with the US, on its own, would not resolve the issue of delay and lengthy court proceedings in civil litigation of IP rights.

In the FTA talks, the US is asking for stronger protection of IP rights.

On April 28, Prime Minister Datuk Seri Abdullah Ahmad Badawi launched the Intellectual Property Policy, which includes a RM5 billion fund, an academy and a special court for IP disputes.

Su said one designated court was incapable of reducing the number of unheard cases.

"(And) as the court can only hear cases that are brought in KL, the backlog of cases in other states remains unresolved," she added in an interview.

She said while in Singapore, it was common for a trial to be concluded within a year or two, and for an appeal to be heard within a year, in Malaysia, it was typical for a trial to take between four and eight years.

In one case which she handled where parallel actions over issues on trade marks registered in Malaysia and Singapore were filed in both countries, the trial and appeal were completed within two years in Singapore while in Malaysia, the case had even not been set down for trial.

"The general delay in legal proceedings in Malaysia acts as a deterrent for parties to enforce their rights through civil action," she said.

"Lengthy legal proceedings do not address the commercial needs of many [IP] right owners, especially those in the business of fast moving consumer products," she added.

Su said the Malaysian court system was inefficient because of the shortage of courts and judges, especially judges who were attuned to legal and commercial issues surrounding IP rights.

Currently, both the criminal and civil courts in Malaysia are relevant to IP disputes. The S4 sessions court in Kuala Lumpur presently hears IP criminal cases while nearly all IP civil disputes go to the commercial division of the KL High Court.

There is no centralised IP court that hears both criminal and civil matters, nor is there a specially designated IP court that hears civil matters.

Su said even though litigation in Singapore was also a costly affair, its efficient legal system provided a plaintiff with the certainty of a final outcome within a short and definite period.

She said civil litigation cases on IP rights was usually, if not always, very urgent.

"In IP infringement cases, infringing materials could be disposed of quickly and surreptitiously and confidential information easily erased or destroyed," she said.

IP rights which are often enforced or disputed relate to trade marks, copyright, patents, industrial designs and confidential information.

Su said interim remedies such as a court order restraining or prohibiting the continuation of the infringing acts, for example, dealing with fake products, are crucial pending the outcome of a trial because the reputation of the IP rights owner could be damaged, or public health affected, if fake goods remain in the market.

However, she noted that in Malaysia, a decision on an inter parte interim application can take between four months and a year.

On the possibility of an FTA with the US resolving the problem, Su said "massive structural reform of the judicial system" was not expected if Malaysia signed the FTA.

"I personally do not see how signing the US FTA will place greater expectations on the government to increase or improve enforcement (to protect IP rights)."

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