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What is intellectual property?

• Intellectual property (“IP”) refers to assets created
by the human mind that are treated as property for
legal purposes.

INTELLECTUAL • As with any other property, IP can be owned and

used for commercial benefit (e.g. sold for profit or
licensed in return for payment)
PROPERTY LAW • Some IP rights (e.g. trade marks, patents,
registered designs) are secured by formal
registration; other IP rights (e.g. copyright, right
against passing off under law of tort, trade secrets
- under law of contract) can be acquired
automatically without the need for registration.
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Types of IP Why protect IP rights?

1. Trade Mark - registered • Authors, makers, etc ought to be
2. The important right compensated and rewarded for their
time, energy and expense in creating
against passing-off works and end-products which benefit
if unregistered society
3. Patent • To provide an economic incentive for
innovation so as to encourage the
4. Copyright creation of new knowledge and
5. Registered Design technology.
6. Trade Secrets
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A trademark can be…

1. TRADE MARK
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• Words – e.g. Coca-Cola, Milo 6
• A trade mark is a sign capable of being • Designs / Logos (symbol or stylized word) – eg:
represented graphically and used to • Letters – e.g. HP
distinguish goods or services in the course of
trade. • Numerals – e.g. 501
• Colors – e.g. Tiffany blue, Orange telco
• Relevant statute: Trade Marks Act (Cap. 332)
• Shapes of goods, packaging – e.g. Toblerone chocolate
• A trade mark is registered in relation to a bars
particular class of goods and services.
• Sounds – e.g. musical jingles e.g Yahoo yodel
§ Example: Tiger Balm, Tiger Beer and Tiger
Airways are trade marks used for different • Smells – e.g. perfumes
classes of goods and services. Different While the Act allows for sound and smells to be
companies own the marks. registered, in practice, it is difficult to do so
because consistent and meaningful graphical
representations of the marks are required for
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Trade Mark –
Requirements for registration at IPOS
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A trade mark must:
1. be capable of being represented
graphically;
2. be distinctive (i.e. capable of distinguishing
goods/services of the trade mark owner from
others), and not merely descriptive;
3. not be confusingly similar to an existing
trade mark in the same category of goods;
4. not be contrary to public policy; and
5. not be deceptive.
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McDonald’s Corp v Future Enterprises Pte Ltd
ØIn this case, Future Enterprises Pte Ltd sought to register
the marks “MacTea”, “MacChocolate” and “MacNoodles”
along with an eagle sign. McDonalds opposed the
application.
ØThe court noted that McDonald's goods consist of food
and beverage sold in a prepared and ready-to-eat form
over the counter, within its fast food restaurants with its
ubiquitous "M" logo. In contrast, Future Enterprises'
goods are 3-in-1 or 2-in-1 instant beverages and instant
noodles that are sold in supermarkets and provision
shops.
ØThe packing is designed for self-service shopping in the
supermarkets and shops with little sales service. The
mode and outlets for sale are therefore different. 9
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Trade Mark - Infringement
• Infringement is the unauthorized use of an identical or
similar mark for commercial purposes that is likely to
confuse the public.
• The Trade Marks Act provides for enforcement of
registered trade marks through infringement
proceedings.
• Infringement can attract both civil and criminal
liabilities.
• A trade mark need not be registered to be protected
(see “Passing-Off” ) but if it is registered, the owner will
find it easier to sue for infringement.
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Trade Mark - Registration
• Applications to register a trade mark are filed with the
Intellectual Property Office of Singapore
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(IPOS).
• Registration protects a trademark for 10 years from the date
of registration [s18(1) of Trade Marks Act] and may be
renewed indefinitely for subsequent periods of 10 years if
there is commercial use.
• Registration confers the right to prevent others from using an
identical or similar mark, in relation to the same or similar
goods or services in Singapore, without the trade mark
holder’s permission.
• are symbols that indicates that a mark is a registered
trade mark protected under the law.
• TM - a Trade Mark™ - used before registration/common law
rights in an unregistered trademark
• SM - a Service Mark SM - used before registration
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• Furthermore, the court held that the proposed
marks were different in terms of the colour, font
and typeface and that on the whole the signs
were different.
• Future Enterprises Ltd had distinguished its
mark by using an eagle device, among other
things.
• The court stated that “one should be slow to
think that the average individual is easily
deceived or hoodwinked”. Hence McDonald’s
objections were not upheld.
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Trade Mark - Remedies
• Damages
• Account of profits
• Delivery up or disposal of infringing
goods
• Injunction (order forcing a party to
refrain from doing a certain act –
e.g: to stop using a particular mark)
• Criminal liability
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Doctor’s Associates Inc v Lim Eng Wah
(trading as SUBWAY NICHE)
ØThe plaintiff, the franchisor of the sandwich chain Subway,
registered the trademark SUBWAY in Singapore in 1989. The
defendant sells sandwiches and local snacks under the
SUBWAY NICHE mark, which, though unregistered, has been
in use in Singapore since 1987.
ØThe judge noted that Lim (Subway Niche) , who set up his
first stall in 1987, had taken pains to distinguish his goods
from Subway’s.
ØJustice Prakash said that to succeed in its claim, Subway
needs to demonstrate that consumers who purchased
Subway Niche's goods believe that they originate from, or
are associated with Subway. In determining the likelihood of
confusion, the Court took into account the following factors:
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Ø Justice Prakash found that there was very little
evidence of confusion among consumers. The
Court found that the evidence tendered by the
plaintiff in this connection was deficient, as it was
vague and isolated.
Ø Given these differences and the lack of
substantive evidence tendered by the plaintiff, the
Court held that, although both the marks and the
goods (sandwiches) and services (restaurants)
provided under them were similar, there was no
confusion.
Ø So Subway lost the trademark lawsuit against
Subway Niche.
Main point:
Although the marks were similar,
there was no likelihood of confusion
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PASSING OFF : Elements
Plaintiff must establish the following
17 elements to prove
passing off:
ØThe plaintiff must establish a goodwill or reputation attached to
the goods or services which he supplies in the mind of the
purchasing public by association with the identifying get-up under
which his particular goods or services are offered to the public,
such that the get-up is recognised by the public as distinctive
specifically of the plaintiff's goods or services;
ØHe must demonstrate a misrepresentation by the defendant to
the public leading or likely to lead the public to believe that goods
or services offered by the defendants are the goods or services
of the plaintiff; and
ØHe must demonstrate that he suffers or is likely to suffer damage
by reason of the erroneous belief caused by the defendant's
misrepresentation that the source of the defendant's goods or
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1.The defendant’s sandwiches were prepackaged and
made from sliced bread and simple ingredients, whereas
the plaintiff’s sandwiches were made on the spot and
made from bread rolls and a variety of ingredients;
2. The plaintiff emphasized the Italian nature of its
sandwiches and called them “subs”;
3. There was a price difference between the plaintiff’s and
the defendant’s sandwiches; and
4. There were differences in the interior design schemes
of the parties’ outlets.
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2. Right against Passing-off
ØPassing off occurs when16 the defendant uses the
plaintiff’s mark on his own goods or services, with
the effect of misrepresenting to the public that his
goods are associated with the plaintiff’s goods -
unfair competition
ØPassing off is a tort under common law, whereas the
law relating to trade marks is found under the Trade
Marks Act (statute law).
ØTrade marks must be registered in order to enjoy
protection under the Trade Marks Act. If a mark is
not registered, a business can still use the tort of
passing off (which does not require registration)
against infringers.
ØHowever, registering a trade mark gives better
protection to the owner.
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Lifestyle 1.99 Pte Ltd v S$1.99 Pte Ltd
(trading as ONE.99 SHOP)
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ØIn 1997, the respondent operated a chain of retail shops under
the style ‘ONE.99 shop’. All the goods sold in its shops were
priced at S$1.99. The shop’s logo consisted of the words
“ONE.shop” written in black against a white background with the
numbers “99” appearing in a larger, red-coloured font over the
word “shop”. The shop was referred to as the “$1.99 Shop”, the
“1.99 Shop” and the “$1.99 Store”.
ØIn September 1998, the appellant was incorporated and it chose
the $1.99 retail concept as it was something its parent company
had previously done on an ad hoc basis. Its logo consisted of the
word “Lifestyle” above the number “1.99” in a white-coloured font
against an oval-shaped, cyan-coloured background.
ØThe respondent instituted legal action against appellant after they
failed to comply with their demand that appellant cease the use of
the name ‘Lifestyle 1.99’ alleging it was confusingly similar to
their name ‘ONE.99’.
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The Singapore Court of Appeal held:
ØThe respondent’s turnover19 was relatively substantial
and there was evidence of goodwill.
Ø‘ONE.99’ was clearly descriptive, bearing in mind the
business name was carried out in the respondent’s
outlets, namely the selling of goods at S$1.99.
ØWhere the name of a business was descriptive, and
it was the first of such business, it was difficult to
show distinctiveness as the public had nothing to
contrast it with.
ØFurthermore, when descriptive words were used, a
slight difference between the names would suffice to
distinguish them.
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3. PATENT
• Patents protect inventions.
• A patent is a statutory right granting a legal monopoly over an
invention to the inventor, enabling him to prevent others from
using, making or selling the invention without his consent.
• Relevant statute: Patents Act (Cap. 221)
• Patents are granted by IPOS and are necessary for protection.
• Protection is for 20 years from date of filing of the patent
application (s36(a) Patents Act). A patent cannot be renewed.
• Patents provide protection against reverse engineering.
Reverse engineering is taking apart an object or examining its
construction or composition to see how it works in order to
reproduce, duplicate or enhance the object.
• Protection is granted to the first to file an application (not the
first to invent)
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Comparison of patents & trademarks in
terms of value over duration of protection
Therefore, we can think of patents as a
twenty-layer brick wall, corresponding to
the twenty-year protective term of the
patent.
With every successive year, the patent wall
gets thinned and worn out by the barrage
of time and technological advances. After
20 years, it would be no more.
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ØOn the facts, the appellant did not take an unfair
advantage of the name “ONE.99” or “1.99” as its
parent company had engaged in ad hoc promotional
sales of products at $1.99 since September 1997.
ØIt had also taken adequate measures to distinguish the
two businesses by the additional word “Lifestyle” as
well as the use of different colour schemes and logos.
Hence there was no possibility of deception.
ØThe respondent failed to show that there was
misrepresentation on the appellant’s part.
ØTo grant the respondent’s claim would amount to
granting a monopoly to the person to use that
descriptive term.
ØHence, the tort of passing off was not established.
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Patents (cont’d)
The applicant for a patent must22fulfill 3 requirements:
1. Invention is new (i.e. no publicly available information
about it anywhere in the world)
2. Involves an inventive step (i.e. not obvious to an
expert in that field). This was explained in
FE Global Electronics Pte Ltd v Trek Technology
(Singapore) Pte Ltd )
The commercial success of the invention may be a
sign of inventiveness
• Even though the elements in the invention were
already available, no one except the patentee
had the inventiveness to combine them together.
3. Capable of industrial application (i.e. has practical
use)
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Comparison of patents & trademarks in
terms of value over duration of protection
In contrast, a well-built brand may
escalate in value with each successive
year that passes.
It can even become very powerful
(indomitable) after 20-25 years
(trademarks may be renewed every 10
years).
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4. COPYRIGHT
• Copyright is a bundle of 25exclusive rights given to
Is copyright a monopoly?
creators of original works.
• “Original” simply means that there is independent
ØUnlike registered designs and patents,
effort in the creation of the work, i.e. the result of copyright is not a monopoly.
one’s own skill, labour or judgment. (It is not about ØIt is essentially a negative right to
the artistic merit of the work) prevent copying.
• Quaere: Does copyright protect (1) the original
expression of thought or (2) the expression of original ØThis means that if two identical works
thought? were in fact produced independently of
• Important to keep earlier working drafts to prove one another, there is no infringement of
originality copyright by one of the other
• Relevant statute: s7 Copyright Act (Cap. 63)

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Rogers v Koons • Copyright protects the manner in which ideas

https://en.wikipedia.org/wiki/Rogers_v._Koons
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are expressed, i.e. it28 must have tangible
expression.
Photographer Art Rogers shot a photograph of a
• It does not protect ideas, facts or information.
couple holding a line of puppies in a row and sold it
for use in greeting cards and similar products. • 2 pre-conditions for protection:
Internationally, renowned artist Jeff Koons in the (1) Subject matter must be of a protectable
process of creating an exhibit on the banality(not type:
original) of everyday items, ran across Rogers’ • Authors’ works or Entrepreneurial works
photograph and used it to create a set of statues (2) Connection to Singapore
based on the image. Koons sold several of these • Eg: Authors/makers are Singapore
citizens or residents, or a Singapore
structures, making a significant profit. Can you build
company, or work is first published in
upon another’s work to create your own original Singapore
piece?
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Protectable subject matter under copyright

Types of Copyright
– Author’s Works
Works Subject Matter Other Than Copyright exists in the following authors’ works:
Works
1. Literary works (E.g. articles, books, essays, poems, lyrics,
(Entrepreneurial Works)
Neighboring or derivative rights websites and also include computer program s7A(1)(b)CA)
$$$$$$ • Titles, names, short phrases, and slogans are
generally not protected by copyright – too short
Literary Sound Recordings (Sinanide v La Maison Cosmeo)
Musical Cinematograph Films 2. Musical works (E.g. tunes, musical scores)
3. Artistic works (E.g. paintings, sculptures, drawings,
Artistic Broadcasts
photographs, engravings)
Dramatic Cable Programmes
4. Dramatic works (E.g. scripts for a film or play, dance
Published Editions of Works choreography – must be written)
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Bundle of rights conferred by copyright Copyright - Duration

The author of a literary, musical,
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artistic or dramatic 32
ØProtection is automatic (no need to register copyright) upon
work has exclusive rights under Copyright Act(s30(2)): creation of an original work in a fixed/tangible form
ØReproduce the work / make a copy in a material form ØFor authors’ works (i.e. literary, musical, dramatic and
artistic works), the Copyright Act grants the author exclusive
ØPublish the work rights during the life of the author plus 70 years.
ØPerform the work in public ØFor works which remain unpublished at the time of the
author’s death, copyright extends to 70 years after the work
Øapplicable only to literary, musical or dramatic is first published.
works
ØFor exclusive rights in a published edition of a work or
ØCommunicate the work to the public via electronic works
means (e.g. broadcast, cable, internet, etc) Ø (literary, dramatic, musical or artistic) 25 years from the
end of the year in which the edition was first published.
ØMake an adaptation of the work
ØCopyright cannot be renewed.
Øapplicable only to literary, musical or dramatic
works ØAfter the period of protection has lapsed, the work enters
the public domain - anyone can then copy the work for free.
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Protectable subject matter under copyright

Ø Various persons can have various
– Entrepreneurial Works
33 different copyright in 34a particular product.
• Someone (“maker”) other than the “author” may hold
copyright in the following entrepreneurial works:
In the case of a song recorded on a CD:
• Sound recordings e.g CDs, MP3s, etc Ø Songwriter has copyright in the lyrics
• Cinematograph films e.g: DVDs, VCDs, etc Ø (literary work)
• Broadcasts e.g TV, radio, etc
Ø Composer has copyright in the tune
• Cable programmes e.g cable/pay TV such as HBO
• Published editions of works e.g: the layout and Ø (musical work)
presentation, the typographical arrangement of a Ø Recording company has copyright in
newspaper or magazine as a whole
the sound recording
• Eg: I Not Stupid – Jack Neo has copyright in the screenplay
(dramatic work) as its author/screenwriter whereas Daniel Ø Making an unauthorized copy of the CD
Yun has a separate copyright in the movie (cinematograph infringes all these different types of
film) as its maker/producer
copyright
• Makers enjoy copyright as a reward for their effort and
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Can there be dual protection Copyright – Infringement

under the laws of trade marks and 36

copyright? ØCopyright is infringed by the doing of acts which

Auvi Pte Ltd v Seah Siew Tee
The applicant’s mark can be considered both
a trade mark as well as an artistic work (copyright).
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only the copyright owner is entitled to do, without
the owner’s consent.
ØThere is infringement as long as there is
substantial copying – either in terms of quantity
(amount) or quality
ØThere can be infringement even if the infringer
acknowledges that the work belongs to the
copyright owner.
ØInfringement also occurs when infringing copies of
copyrighted material are commercially exploited –
eg: offering pirated software for sale to the public
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Copyright - Remedies Copyright - Defences/exceptions

ØThe exception of fair dealing 38
allows some copying for
ØDamages research, private study, review, criticism, or news
reporting.
ØAccount of profits ØFor a published work (eg textbook), copying of up to 10%
of the total number of pages or one chapter (whichever
ØDelivery up or disposal of is greater) of the work is deemed to be fair dealing if
done for private study or research.
infringing copies Ø The Copyright Act also allows:
ØInjunction Ø one back-up copy of software
Ø one copy of a broadcast or cable programme for
ØCriminal liability private or domestic use
Ø limited copying for libraries, schools and government
services (certain specific statutory provisions)
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What about work created by an 5. REGISTERED DESIGN

employee?
• Section 30(6) of the Copyright Act
provides that when an employee
creates a piece of work as part of his
job, the employee is the author, but the
employer will automatically own the
copyright in the work unless there is an
agreement to the contrary.
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ØA design refers to features of shape, configuration,
pattern, ornament applied to an article by a industrial
process.
ØIt is the appearance of articles we see everyday. It can be:
Ø 2-dimensional (e.g. pattern on a piece of fabric or
carpet) or 3-dimensional (e.g. shape of a perfume
bottle, mobile phone design, furniture, etc)
ØRelevant Statute: Registered Designs Act (Cap. 266)
ØRegistration is necessary for protection.
ØRegistration grants the owner the right to prevent others
from making or selling in Singapore any article bearing
that design without his consent.
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Requirements for registration:
1. Design must be new (not41 considered new if already
published anywhere in the world or is different only in
minor details). There is no additional requirement
that the design should have ‘eye appeal’ or
‘individual character’.
2. Design must be capable of being applied to an article
by an industrial process (i.e. more than 50 copies
of the article to be industrially reproduced for sale).
Ø Design must be registered in respect of a specified
class of articles e.g. furnishings, tools, etc.
Ø Designs which are dictated solely by the function
which the article has to perform (the ‘functionality’
exclusion) cannot be registered.
Ø Protection is for 5 years; may be extended for 2
further periods of 5 years each – i.e. maximum 15
years’ protection. (c) 2020 Ngee Ann Polytechnic
Hunter Manufacturing Pte Ltd v Soundtex
Switchgear & Engineering
42 Pte Ltd
• It was held that a registered design includes all
its features, those which are novel (new) and
those which are not, and must be looked at as
a whole, and the comparison exercise
conducted must have regard to the design as a
whole. There will be no infringement, if the
alleged infringement is substantially different
from the registered design looked at as a
whole.
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6. TRADE SECRETS ØThe law on confidential information is

ØTrade secrets refer to highly confidential information concerned with preventing a person from
that has commercial value. divulging information which has been given
to him in confidence and on the express or
ØEg: secret chemical formula, secret recipe, secret implicit understanding that the information
manufacturing process should not be disclosed to others or
ØLegal action (damages and injunction) can be taken otherwise used by him.
against someone who reveals a trade secret to others,
in breach of a promise of confidence/secrecy. ØIt is given statutory recognition in Singapore
ØNo registration required, and no time limit for the in section 6 of the Copyright Act which
protection of the secret – i.e. may be protected states:
indefinitely (unlike patents).
ØAn invention may be protected under either patent law ‘Nothing in this Act shall affect the operation
or trade secret law. However, trade secrets do not of the law relating to breaches of trust or
protect against reverse engineering (unlike patents). confidence.’
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ØThe law on confidential information Elements of the law on confidence

provides a useful adjunct to the other To be protectable,
intellectual property rights.
Øthe information must have the necessary
ØFor instance, whilst copyright protects quality of confidence about it;
the expression of the idea only, the law
on confidential information is wider and Øthe information must have been imparted
can protect the idea itself. in circumstances importing an obligation
of confidence; and
ØAdditionally, the law can be useful for
Øthere must be an unauthorised use of
certain types of trade secrets for which
the other rights may not be appropriate, the information to the detriment of the
such as the recipe for the ‘Coca-Cola’ party communicating it.
drink or a secret business plan.
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Preventing loss of trade secrets Use the correct case law for
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ØInclude restraint of trade and confidentiality clauses in the different IP rights
employment contracts
ØRestraint of trade clauses prohibit employees from • Trade Mark: McDonald’s Corp v Future
subsequently working for competitors or becoming a Enterprises Pte Ltd
competitor (but cannot last forever)
• Tort of Passing Off: Lifestyle 1.99 Pte Ltd v
ØConfidentiality clauses prohibit employees from
disclosing or using trade secrets - even after their
S$1.99 Pte Ltd (trading as ONE.99 SHOP)
employment ends • Patent: FE Global Electronics Pte Ltd v Trek
ØGet business partners to sign Non-Disclosure Technology (Singapore) Pte Ltd
Agreements before sharing any trade secret
• Copyright: Sinanide v La Maison Cosmeo
information with them
ØRestrict employees’ access to trade secret information
• Registered Design: Hunter Manufacturing Pte
on a strictly “need-to-know” basis Ltd v Soundtex Switchgear & Engineering Pte
ØClearly label trade secret information as “Confidential” Ltd
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