|
 



 





   
 



 
 


  



| !"#$%
|   &'

The dependence on contract manufacturing means that

Malaysia is weak in terms of design and product
planning capabilities, distribution and marketing
capabilities.

Instead of creating original Malaysian brands or names,

Malaysian manufacturers produce for major world brand
names, including: Adidas, Arnold Palmer, Active Wear,
BUM Equipment, Calvin Klein, Christian Dior, Gucci,
Guess, Donna Karan, YSL, Levi's, Nike, Padini, Polo,
Ralph Lauren, Reebok, Slazenger, Pierre Cardin, Camel,
Mizuno and Montagut.
 |
  $
 

 

Ö DIFFERENTIATION is the act of

designing a set of meaningful
differences to distinguish the
company¶s offering from competitors¶
offerings.
- Kotler (1997)
 (
 
( 

 )*$
 
Ö The product represents a  '
! on
competing or substitute products
Ö The retail-selling price is considered to be advantageous
Ö The product and/or its labeling has an 
! 
Ö The new product is properly 
  , promoted and
advertised
Ö The new product is readily available to customers in the
main retail shops
Ö A number of after-sales services are provided that make
the product appealing to consumers
mow to Prevent Free Riding?

Ö If functional improvements, attractive

designs and a well-positioned brand
are some of the features that may
determine the success of a new
product, what can an SME do to
protect them and maintain its
exclusivity over their use?
 +*
,

Ö Innovation - functional Patents or Utility

improvement of a Models
product
Ö Design - development
of the ornamental
Industrial Designs
features of a product
Ö Brand - for marketing
the product
Trademarks
Ö $  for the fountain pen that
could store ink
Ö | for the grip and
pippette for injection of ink
Ö  
  smart design
with the grip in the shape of an
arrow
Ö 

: provided on the
product and the packaging to
distinguish it from other pens

Source: Japanese Patent Office

Corporate Image, Product
Positioning and Brand Equity
Ö TRUST and RELATIONSmIPS are the
bulwark of any enterprise, be it big or small,
with a global or local ambit, having a
traditional or modern management style,
high tech or low tech, leader or follower, and
irrespective of it being a part of the old world
of µbrick and mortar¶ or a rising star reliant on
e-commerce
Building Trust and Relationships

Ö A Brand is a consistent, holistic pledge

made by a company, the face a company
presents
ÖA Brand serves as an unmistakable symbol
for products and services
Ö Business card´ a company proffers on the
competitive scene to set itself apart from the
rest
Trust is to Business, as
Trademark is to Brand
ÖBrand Equity built on the foundation of a
protected Trademark
ÖBrand/Trademark can:
(a) be disposed off separately from other
company assets (Free-standing
Institutions); and
(b) give rights that can be legally protected


 -


ÖTrademark: Legal concept
ÖBrand: Marketing concept
ÖRegistration of a trademark adds value
as it protects its other inherent assets
ÖBrand profile and positioning may vary
over time, but trademark protection
remains the same
 WmAT IS A TRADEMARK?
Ö Any sign, or any combination of signs,
capable of distinguishing the goods or
services of one undertaking from those of
other undertakings, shall be capable of
constituting a trademark.
Ö Words including personal names, letters,
numerals, figurative elements (logos),
combination of colors, sounds, smells, etc
Ö
isually perceptible; 2D or 3D (shape)
Ö Graphic representation
 Any Distinctive Words, Letters, Numerals,
Pictures, Shapes, Colors, Logotypes,
Labels
In some countries: Sounds, Smells and
Three-dimensional marks
Ö Examples:
 



(1) Defines the differential features

of a product or service:
Ö Real or Imaginary
Ö Rational or Irrational
Ö Tangible or Intangible
 

  ...

(2) Constitutes an image that creates a

personal experience:
Ö Own
Ö Third party
Ö Imaginary
 

  ...

(3) With conscious and unconscious contents

that the consumer projects and deposits on it;
(4) Constitutes part of and builds up his/her
identity;
(5) Generates certain perceptions, attitudes
and behaviors and enables fulfillment in their
lives


  
Ö | 
/!!0
Ö 1

/  
 '0
Ö


Ö 
/2&'
  2
0
Ö 3 
/
2 
'
'
 0
Role of Brands: For the Company

In a highly competitive world, where

manufacturers are losing their
pricing power, branding is seen as a
way of clawing back some of the lost
influence.
Role of Brands: For the Company

ÖReal and marketable asset

Ömigher profit margin (Price Premium)
ÖIncremental cash flow
ÖReduces cash flow sustainability risk
Role of Brands: For the Company

ÖAccelerates speed of cash flow

ÖIncreases bonding and customer loyalty
ÖIncreased market share
ÖEntry barrier
ÖLimits growth of competitors
Role of Brands: For the Company

ÖRequires lower investment levels

ÖBetter negotiating position with trade and
other suppliers
ÖFacilitates higher product availability
(better distribution coverage)
ÖDealers order what customers explicitly
request
Role of Brands: For the Company
ÖExtends products¶ life cycle
ÖAllows lower cost brand extensions
ÖCan be the basis for international expansion
ÖProvides legal protection; licensing;
franchising
ÖBuffer to survive market or product problems
Role of Brands: For the Company

Ö
alue of Brands is a key determinant of

enterprise value and stock market
capitalization
ÖFinancial markets reward consistently
focussed brand strategies
ÖBrand management a vital ingredient for
success in corporate strategy

...
ÖBrand Building Requires Time and
nd Money;
ÖBrand Nourishing Should be a Continuous
Process;
Ömigher Profile/Exposure, Greater its

ulnerability;
ÖCan be Target of Counterfeiting/Criminal
Activities;
Time required...

It took seven years of marketing before

car buyers began to recognize that the
BMW brand was distinctive´: Jorg
Zintzmeyer, board member of Interbrand,
p 33 of FORBES Global, July 22, 2002 in
The best-driven brand´ by Nigel mollway
...
  
 
 !
  !
 
'
 . *
 
 
  
' .
Morgan Stanley¶s Pettis Report on
the relationship of corporate brand
strategy and stock price shows
that«.

Ö Smart strategies can result in stock price

appreciation by 2 to 9%´
Ö Positive Correlation between corporate
improvements in brand strategy programs
and a positive stock market return
ÖStarbucks: P/E ratio of 47!
'
 

 

Consumers are starved for time and

overwhelmed by the choices
available to them. They want strong
brands that simplify their decision
making and reduce their risks´
+


 
 4

Kevin Lane Keller, Tuck School of Business

 ( 



For the consumer:

Ö Enables consumers to distinguish
between similar or identical products
Ö Products with characteristics that may not
be examined prior to purchase
Ö Trademark as a guarantee of quality
 (


Ö For the company:
± Enables it to differentiate its products
± Basis for investing in the image and
reputation of a company¶s products
± Consumers have emotional attachment
to certain trademarks
± Basis for a loyal clientele
 5  




Ö 

     
!

!  

*


 2 US$ 68.9 billon |
 : 65.1 bill. 

|:
52.7 bill.
 5  



Ö Consumers are willing to pay a premium

price for a product bearing a trademark
with a given reputation
Ö Mergers and acquisitions increasingly
driven by need to acquire a trademark to,
for example, enter a new market
Ö Companies outsourcing manufacturing
activities to low-cost locations rely heavily
on the trademarks as the main source of
competitive advantage
  

Ö From a commercial point of view:
± Short and simple
± Easy to read, spell, pronounce and
remember in all relevant languages
± Not to have undesired connotations in
any relevant language ( Nova´,
Traficante´, Taco Bell´)
± Easy to adapt to all advertising media
  

Ö Cannot be registered as trademarks:
± Generic marks (cases nylon´, formica´,
aspirin´, etc)
± Descriptive signs
± Signs that may lead to confusion as to the
nature of the product
± Signs contrary to public order
± Geographic signs
± Signs that are similar or identical to
existing registered trademarks
 Selecting a Trademark
Ö Best choice:
± Arbitrary/fanciful ±
Ö Kodak® film, Acrobat® software, Exxon® fuels
± Suggestive ± gives a hint of what the product
is, but is not merely descriptive ±
Ö Molyvan®,
ancote®
Ö Can not be à
 or   

± µSuper Strong¶
± Diet Chocolate Fudge Soda
± KANZEN TETSU ®
 Selecting a Trademark
Arbitrary/fanciful ±
Ö +
 ® software, &&® fuels, '
® soft drink

Suggestive ± gives a hint of what the product is, but

is not merely descriptive ±
Ö 22
*® cleaner, 6
 ® in-line skates

Descriptive with acquired distinctiveness´

+
 +
®

Ö Can NOT be à
 or   


± 

 or '


 Selecting a Trademark
Ö Must not be 


à
 to existing
trademarks used on related goods.
± Are the marks related
Ö
isual appearance, sound-alike?
± Are the goods related
Ö Trade channels, marketing channels, compare likely
purchaser group
Ö Other factors ± sophistication of purchasing group,
selling price, impulse vs. careful purchaser
Ö Likelihood of confusion ± would consumers
believe that the two products come from the
same source
 Types of trademarks which cannot be
registered in Malaysia

'
  *" 

*

 

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Ö *( 

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!
 
 
 


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 Types of trademarks which cannot be
registered in Malaysia
Ö 

  **
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 Types of trademarks which cannot be
registered in Malaysia



*

 

Ö )
"

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Ö ) 
' 

Ö  ''
 

Ö #
* 
 

 Clearing a New Mark

Ö 
 ±
± ' 

 ''   

 


± µ(2%¶ search
Ö Recommend to *' with outside
search (Thomson &Thomson®), which will
find phonetically similar marks
 Clearing a New Mark
Ö Searching
± µCommon law¶ marks- third party rights
may also exist in non-registered marks.
Sources: GoogleΠsearch,
Lexis®/Nexis®, industry publications,
Thomson & Thomson®
 Clearing a New Mark
Ö :!  ± registered marks
may be invalid ± confirm current use
through Internet or outside investigator.
Ö %' ± experienced trademark counsel
can give guidance as to descriptiveness
and confusion issues
 Proper Trademark Usage
Ö #4 ± improper use can lead to loss of
exclusive rights ± mark becomes generic,
and everyone can use it
Ö 
 - aspirin, cellophane, escalator,
thermos, linoleum
Ö  ± Xerox® copiers, Band-Aid®
bandages, Rollerblade® in-line skates
 Proper Trademark Usage
1*4
Ö DO
± Use as an adjective modifying a
generic noun: ;
&® copiers
± Set apart from other text:
Ö Initial capital Xerox® copiers
Ö All caps XEROX® copiers
Ö Bold, or different font >erox® copiers
 Proper Trademark Usage
1*4
Ö DO )%
± Use as a noun or verb
Ö Give me a xerox´
Ö I am xeroxing that now´
± Use in the plural
Ö Incorrect - Three xeroxes
Ö Correct ± Three Xerox copies
 ® ± when to use
Ö ® indicates that a trademark is
registered in MyIPO. i

  




 
 à
  

Ö It is
àà
 to use ® where
appropriate (gives notice to the public),
though it is
  
 TM, SM © - when to use
'
±  be used for unregistered marks
± mas no legal effect

SM may be used for unregistered µservice marks¶ in

place of TM, but there is not really a legal
distinction

© relates to copyright, not trademark rights

 Loss of Rights
Ö Genericide
Ö Abandonment
± Usually 3-5 years of non-use may be grounds
for cancellation; 3 years in Malaysia
± Discontinue use with no intention to resume use
Ö Naked licensing´ ± authorized use by a
licensee does not go to benefit of trademark
owner if not controlled and monitored´ ±
can lead to abandonment
 +*
'
 '
Ö TM is a 


 

Ö TM must be

 (protection
through use weak and only in some
countries, including Malaysia); renewal of
registration
Ö It is the responsibility of the TM owner to
identify TM 
 and take action
against infringers
 6
/<0

National route: submit application form in

each country where you seek protection.
- National fees for each country
- Translation into national languages
- Convenient if protection sought in one or a limited
number of countries or no alternative
 6
/=0
Regional route: use regional trademark
systems for protection in several countries.
- +
  $
'
%
 9 /%+$0:
www.oapi.wipo.net
2 +
 6  
 $
'
%
 9 
/+6$%0: www.aripo.org
-
&

%
- %
1
9 
 |

/%1|0  trademark office for countries that are members
of the European Union. mttp://oami.eu.int
 6
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International route: Madrid system for the
international registration of marks
- One application
- One language
- One set of fees
- 77 member states
- Administered by WIPO
- One system, two treaties
 |


 
   

ã
 


  
ã

 
    $*

Ö An Italian businessman buys unmarked t-shirts

from manufacturers of generic clothing, attaches
his trademark and begins to sell them to retail
stores
Ö Started in a garage in the periphery of Rome
Ö Today the Pickwick trademark is perceived by
Italian teenagers as a synonym of style and quality
Ö Pickwick exports its products across Europe
Ö Its trademark is considered its most valuable
asset.
 GRINGO Case Study

A Mozambiquian Success Story...

 ZARA Case Study
In i

 

   

 
 ([2005] 2 CLJ 357) the defendant
applied to amend the Trademarks Register to expunge the plaintiff¶s ZARA mark on the
grounds that:
Ö the ZARA mark was wrongly entered in the register as its use was likely to deceive or cause
confusion to the public because the ZARA mark is well known in Malaysia as a result of the
defendant¶s alleged use of it since September 1999; and
Ö there had been no use of the ZARA mark during its registration by the plaintiff for a
continuous period of three years up to one month before the application for rectification was
filed.
In dismissing the first ground, the migh Court held that the correct date in determining whether
the mark was well known in Malaysia was the date of application for registration of the ZARA
mark by the plaintiff (ie, August 3 1998). The defendant failed to adduce any evidence that the
ZARA mark was well known in Malaysia on this date.
In dismissing the second ground, the migh Court held that the correct date when calculating
whether there had been non-use of the ZARA mark during its registration for a continuous
period of three years was the date the mark was actually entered upon the register (ie,
February 5 2002) and not the date of application for registration. Therefore, the three-year
period should run from February 5 2002 and not August 3 1998. The migh Court found that the
plaintiff had started using the ZARA mark 10 months before the rectification proceedings were
filed by the defendant; hence the defendant failed to satisfy the requirement of non-use for a
continuous period of three years.
The migh Court recognised the importance of trademark searches to avoid unnecessary
litigation and their significance in commercial and business decisions. The migh Court remarked
that the defendant should have carried out a trademark search at the Registry
3 

Looking Good
 $
'
± Make your product appealing to
consumers
± Create a niche » market
± Customize products in order to target
different customers (e.g. Swatch)
± Develop the brand (e.g. Apple ¶s Think
Different » strategy)
*2  

2  
 6 
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 $
 
 
Ö New (The |   definition of novelty requires
that the design has not been disclosed to the
public in Malaysia before the filing or priority date
or been the subject of an earlier filed Malaysian
design application).
Ö Original (Not required in Malaysia)
Ö mave an individual character´; (Not required in
Malaysia)
Ö In digital world: protection for displays on mobile
phones or computer icons
 $
 
 
Ö |   "  '
 



Ö  
 '"
"' 
"

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*
 
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Ö Industrial designs are compositions of lines or colors or any
three-dimensional forms which give a special ''

to a product
Ö They protect the 
   or aesthetic aspect of a
product
Ö &!
: Right to prevent others from applying
(making, selling or importing) the protected design to
commercial products for a period of 10 to 25 years; 15 yrs in
Malaysia (except in some cases)
Ö Requirement of

 (new EU legislation includes
unregistered design protection)
Ö Section 27 of the Industrial Designs Act 1996 provides for
grant of a compulsory licence if there has been no
reasonable industrial application of the registered design.
  
 $

Ö The IDA of Malaysia provides a right of
action for infringement of a registered design
but no criminal offences.
Ö An action must be brought within a limitation
period of 5 years from the date of
infringement.
Ö A defence of innocent infringement is
available to an infringer who proves that he
was unaware that the design was registered.
 & (|  
Ö With the Industrial Designs Act coming into force in 1 September 1999, Malaysian industrial design
registrations are valid only for a total of only 15 years, with 2 renewal periods.
The Registrar of Industrial Designs issued a Directive stating that the 4th and 5th term extensions of
the extended UK design registrations are not applicable in Malaysia, thereby limiting the extended UK
design registrations to a maximum validity of 15 years instead of the original 25-years.
Ö
As a result, a legal suit ( !"
  # à
i


à

"
$ was brought to
determine the above issue. The migh Court of Malaya ruled that the Industrial Designs Registration
Office should by law accept applications for renewal of the fourth and fifth renewal period for UK
registered industrial designs that were registered after 01 August 1989 but before 01 September 1999.
This will mean that the period of the pre-1999 industrial design filed under the UK Registered Designs
Act 1949 will be applicable for the full 25 year period in Malaysia.
Ö

Ö The Registrar of Industrial Designs has therefore withdrawn the earlier Directive and has issued a New
Directive which states that 4th and 5th period extensions are now allowed (with conditions). The official
fee payable for the subsequent 4th and 5th term of the extended industrial design has not yet been
determined by the Registrar. They have indicated however that they are currently accepting renewal
documentation for the 4th and 5th period extensions, and full renewal documentation should be
provided to them first, to be followed by payment of the official fee upon announcement of the said fee.
The design needs to be new
and/or original. Do these qualify?
 Registering designs abroad
Ö National route
Ö Regional route:
± Office for the marmonization of the Internal
Market (OmIM): industrial designs office of the
European Union
Ö International route:
± The mague Agreement
  '
1 
+
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    6+;
Ö Trax® is a system of public seating
manufactured by OMK Design Ltd.
Ö Originally designed for British Rail. mad to
be !  '' , comfortable and
weather-resistant
Ö In 1990, installed in railway stations in UK
Ö 15 years later, installed in over 60 airports
Ö Industrial design protection in UK, France,
Germany, Italy, Benelux, Australia and the
US has guaranteed a degree of
exclusivity keeping imitators away
 1   
Ö In m
%
&à&
&
  '( ([2005] 3 MLJ 30) monda applied for an interlocutory
injunction against the defendant based on the alleged infringement of:
Ö Ö five industrial design registrations owned by monda for the monda Wave 125 motorcycle by the defendant¶s Comel
Manja JMP 125 motorcycle; and
Ö Ö monda¶s copyright in two and three-dimensional drawings of the monda EX5 Dream motorcycle by the defendant¶s
Comel Manja JMP 100 motorcycle.
Ö The designs were registered on December 7, 2000. The drawings were created by monda in Japan and first published in
Thailand.
Ö In dismissing the defendant¶s contention that the designs were not new as vehicles of a similar design had been sold in
Thailand prior to the plaintiff¶s application to register the designs in Malaysia, the migh Court ruled that the novelty
requirement in the Industrial Designs Act 1996 is territorial. Therefore, prior disclosure of designs outside Malaysia is
irrelevant. The court also applied the statutory presumption under Section 114(e) of the Evidence Act 1950 that official
acts have been correctly carried out. Therefore, the court held that the designs were valid, ruling that there were many
similarities between the monda Wave 125 and the defendant¶s JMP 125.
Ö In dealing with the copyright claim, the court applied the Copyright (Application to Other Countries) Regulations 1990
and held that the drawings first published in Thailand were entitled to copyright protection in Malaysia (subject to
eligibility under the Copyright Act 1987). The court stated that the drawings were protected by copyright as artistic works
in Malaysia and were similar to the eventual product of the JMP 100 motorcycle.
Ö Although the court concluded that there were serious questions to be tried, it stated that the balance of convenience
tilted in favour of refusal of the grant of an interlocutory injunction. The court found that the grant of an injunction
pending final disposal of the suit would have a negative and perhaps irreversible impact on the defendant, as an
injunction would affect third parties and the government.
 1    ...
Ö Interestingly, in considering the copyright claim, Section 7(6) of the Copyright Act 1987 was neither
raised nor dealt with by the court. Section 7(6) protects designs that are capable of being registered
under the Industrial Designs Act 1996 but are not registered. mowever, copyright for such designs
ceases as soon as any article to which the design has been applied is reproduced more than 50 times
by an industrial process.
Ö Based on decisions of the Privy Council and the Australian courts, which are regarded as persuasive in
Malaysia, µcapable of registration¶ has been interpreted to mean that the design falls within the
definition of an µindustrial design¶ under the relevant industrial design laws, and that it does not need to
be new. mowever, there are no reported Malaysian cases dealing with this phrase. An µindustrial design¶
covers features of shape, configuration, pattern or ornament applied to an article by any industrial
process, being features that, in the finished article, appeal to and are judged by the eye.
Ö Designs that are not capable of registration under the Industrial Designs Act 1996 but that are artistic
works within the meaning of the Copyright Act 1987 enjoy copyright protection for 25 years from the
time the design is exploited by the copyright owner or licensee by making articles by an industrial
process as copies of the artistic work and marketing such articles in Malaysia or elsewhere.
Ö The two and three-dimensional drawings of the monda EX5 Dream motorcycle were protected by
copyright as artistic works that are not capable of registration, although technically such drawings were
capable of registration under the Industrial Designs Act 1996. If the latter applied, copyright in such
drawings would cease as soon as the motorcycle (the monda EX5) to which the design is applied had
been reproduced more than 50 times.
 ')!|  
Ö The recent Malaysian decision of ˜
Marketing Sdn Bhd v Virtual ˜entury Sdn Bhd =@@AB<|3?A?, set out that
the design concerned must be looked at as a whole, when comparisons are made with the prior art and that any
evidence of prior art has to be strictly proven.
Ö
Ö Ohe facts of the case
Ö
Ö In this case, the first defendant¶s industrial design which was filed on 12 August, 1999 pertained to the design of a glass
door display chiller / freezer sold under the brand name of LINDEN, termed as Refrigeration Apparatus´ under the
provision of the Industrial Designs Act 1996.
Ö
Ö  )
 

*

à

Ö The plaintiff applied for rectifying the Register of Industrial Designs contending that the Defendant¶s industrial design
registration had wrongfully remained on the Designs Register due to disclosure made to the Malaysian public prior to the
said 12 August, 1999 priority date due to the existence of other designs differing only in immaterial details.
Ö
Ö The first defendant claimed that the existing models and design features of the refrigeration apparatus that existed prior
to the date of the defendants¶ design application were old and unappealing in appearance and, therefore, based on their
background knowledge of the industry, the first defendant developed novel design features and applied it to its product
and sold its new product in the market. The main features, which the first defendant contended were novel, were a
curved crescent like shape, display panel with aluminum frames and curved aluminum doorframes. The defendant¶s
design registration was further bolstered by a registered design, which the defendant had obtained under the UK
Registered Design¶s Act 1949.
Ö
 ')!|  
Ö Ohe findings of the court
Ö
Ö The migh Court followed the requirements of novelty as set out in the English Court of Appeal decision
of ('i
  +' [1970] RPC 397 which held that there must be substantial novelty
or originality having regard to the nature of the article before it is registrable, and differences from the
prior art in details which are immaterial are not enough reason to expunge a design registration. The
question of differences in a particular case would depend on the nature of the article, the extent of the
prior art, and the number of previous designs in the field in question.
Ö
Ö In view of the above, the court held that the question of novelty is dependent on the nature of the
article and that a relevant consideration would be whether the article is a generic product that is
commonly used by members of the public. In such circumstances, it is likely that the design features
applied to an article are already individually in existence or in use prior to the formation of the said
article. The paramount consideration for the court will be the totality of the design features taken as a
whole and the overall appearance of the common article as compared with the articles that were
disclosed to the public earlier.
Ö
Ö The court also held that in relation to generic and common products the standard of novelty must be
construed in accordance with the circumstances and followed the English decision of    
,
( ' [1965] 10 FLR 224.
Ö
 ')!|  
Ö '

Ö
Ö In this case, the statement of novelty read: Novelty Resides In The Shape And Configuration Of The
Design As Shown In The Circle In The Representations´ and was accompanied by front and
perspective photograph of the first defendant¶s article as a whole with a side view photograph of the
curved panel marked as circle A and a front view photograph of a curved panel marked as circle B to
illustrate visual details.
Ö
Ö In this respect, the court held that the plaintiff¶s attempt to isolate each of the designs marked as circles
A and B in the design registration and compare the same individually against purported prior art was
wholly misleading and incorrect in law. This is as the appealing appearance of the first defendant¶s
article was a result of a combination of a crescent like display with curved aluminum border frames and
the door frames having a distinctive curve at the center with the two grooves forming its border.
Ö
Ö Therefore, when both the articles of the defendants as well as the plaintiff were viewed, the Judge held
that there were sufficient and material differences between both the articles in question. The first
defendant had taken reasonable amount of steps to illustrate the characteristics in the design that
would naturally enhance or have impact on the visual appearance or appeal of the first defendant¶s
article.
Ö
 ')!|  
Ö ! $

+

Ö
Ö The court also held that there was no cogent evidence of the prior art as there was only a letter by a foreign company
stating that a certain model of refrigerator was introduced into the Malaysian market in 1993 which the court found to be
hearsay and it did not prove that the design concerned was disclosed to the Malaysian public at that time. As to a
collection of sales brochures and a directory, this was also not accepted by the court as evidence of disclosure to the
public. Therefore, any evidence of disclosure has to be direct and cogent such as the sale of the infringing article before
the court accepts the same.
Ö
Ö In addition, the court held that although evidence of exports of a certain product or article can be shown in Malaysia, this
would not be sufficient or cogent evidence that the product has been disclosed to the public.
Ö
Ö 
Ö
Ö The stand taken by the Malaysian migh Court suggests that the issue of novelty has to be viewed in great detail and not
plainly on a surface level. Accepting 

differences nor trade variants based on the slightest aspect of the article
as was highlighted in the above decision in question would not be sufficient to argue that a design does not hold
novelty.
Ö
Ö The case holds firm that the issue of novelty of a design cannot just be viewed or examined on the minute details of the
article alone but must also be examined as a whole and overall features of the article itself. The court will not view the
article in isolation but rather view it as a whole. The court was therefore right to rule that the plaintiff¶s attempt to isolate
each of the designs from the first defendant¶s article was wholly misleading and incorrect in law.