Trademark or Not?

Last week, I had the chance to meet with someone who was curious to find out more about my company. So, I did the natural thing and pointed him to my website. However, the first thing he exclaimed when the website appeared was, “I can sue you, you know?”.

That kind of stunned me as I was wondering what possible grounds he had to sue me. He then told me that my company’s logo looked like his company’s one. So, I asked him to show me his company logo and true enough, it had the same colour scheme. However, that’s where any similarities ended.

But that got my head thinking anyway.

Last I checked, it was not possible to trademark, copyright, nor patent a colour scheme. So, there would be no grounds for any sort of infringement suit based merely on colour.

Also, I have a nice little certificate hanging in my office, from MyIPO, which is a trademark registration certificate. So, in any sort of trademark suit, I have at least got my ass covered. If there was any suing of any sort to be had, the right to do so would be in the hands of the person with the registered mark.

Finally, my company was also older than his company. While this does not play directly into any suit, it at least shows that I had established it a lot earlier than him. When it comes to intellectual property, first in time tend to matter.

Therefore, I have come to the conclusion that all companies should, as a matter of urgency, register their trademark at the first possible opportunity. I would even hazard to say that it is one of the first things that a company should do, alongside buying up the domain name etc.

By having a registered trademark, we can at least start the business of protecting and defending our brand.

Furthermore, it doesn’t really cost that much to get it registered anyway. I do believe that the entire thing came to around RM2500 or so for a single category of registration. Also, I hired an IP lawyer, instead of a mere agent, to do it. An IP agent should be able to do things for less than a lawyer.

Oh, in case you didn’t know, trademarks are registered┬áby category. So, it may become really expensive to register a trademark in multiple categories but how many companies are operating in so many industries anyway. If a company is big enough to have business interests in many categories, it should have the money to get itself registered anyway.

So, getting a trademark is something that I highly recommend.

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377A of the Penal Code

In light of the Federal Court decision in the case of Sodomy 2.0, I thought that I should take a closer look at this rarely used piece of statute. Apparently, it has only been used seven times in our history and twice on the same bloke. Lucky bastard!

Unfortunately for him, Anwar was found guilty of committing sodomy. The 54 page press summary of the full judgement has already been released to the public. That was awfully efficient of them.

According to various reports, he was charged under S.377A of the Penal Code, which says that:

Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.

Carnal intercourse against the order of nature is conveniently defined in S.377 of the Penal Code, which says that:

Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.

Now, for my 2 sen on this whole issue, from a purely legal perspective devoid of political bias.

Firstly, is the dearth of Law in the summary. If you search through the PDF, you will find reference to merely five precedents. For such a high-profile case, I would have expected the judges to support their judgements with tons of Law – statutes and precedents. That is the kind of high quality judgement that I expected from our nation’s apex court chaired by the CJ, no less.

Unfortunately, we were treated to lots of trivialities, and evidential and scientific minutae instead. There was certainly a lot of commentary and opinion but not much Law. I certainly hope that the full judgement is a lot more padat than the press summary in terms of Law.

Secondly, it is my inderstanding that the Law mandates whipping for S.377A offences. I’m not sure but reports seem to indicate that Anwar will not be whipped. Judges are often given discretion when meting out pecuniary punishments but I’m not sure if they are allowed to simply ignore the clear letter of the Law in this manner.

Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.

If they are allowed to do so, then what happens to the rest of the Penal Code where whipping is also mandated? If you search through the Penal Code, you will find that whipping is a pretty standard punishment meted out for all sorts of crimes. Does this mean that a shall means something other than what I learned in Law school?

Thirdly, I am particularly concerned with the principle that corroborative evidence is not necessary for sexual crimes. While this may be settled Law for rape, it is far from settled for sodomy particularly in Malaysia since we’ve only had so few charged in the past.

Proving rape is difficult enough as it is even with physical evidence. It often boils down to a he-said-she-said case as the critical component that separates rape from regular sex is the element of consent, which must be adduced through evidence. Otherwise, any woman can cry rape and not have to prove it in any way, which is a dangerous precedent.

However, the crime of sodomy is a strict-liability crime and is a different creature from rape simply because the act of sodomy itself is a crime, regardless of consent. Therefore, I would say that the need for corroborative evidence is even more crucial for sodomy. We cannot allow someone to simply accuse another of sodomy without any sort of evidence.

According to the summary PDF:

There was therefore no reason for him to level a false accusation against the appellant as the stigma will remain for his lifetime.

Personally, I can think of a million reasons for someone to level a false accusation against Anwar. That man has painted a bright red target on his back. Therefore, it is definitely reasonable to expect Anwar to have a lot of enemies. Hence, I think that it would be necessary to have solid and unimpeachable evidence that he committed the act of sodomy.

But I guess this principle was not considered much since there have only been so few sodomy charges in the past. Maybe, one day in the future, another sodomy case will reverse this precedent by requiring evidence of sodomy.

Why B.Juris?

Now that I’ve finished my Law degree, I thought I’d just pen down why I ended up picking the B.Juris programme offered by University of Malaya over the ones offered at a number of different private colleges in Malaysia.

When I first decided to study Law, I went shopping for a suitable programme to pursue. Everyone knows about the University of London external LL.B offered at a number of colleges. So, I paid one of them a visit. I was promptly sent to the marketing department where I spoke to one of the marketing officers who explained to me the programme entry requirements, structure and fees.

I told the marketing officer that I already had a PhD and that I was merely doing Law for the knowledge. So, he pointed at the shiny library which was situated behind me and told me that it would not be necessary for me to read any of the books in there at all to pass my degree.

Unfortunately for the marketing officer, he made the wrong pitch. I was actually looking forward to visiting the library and learning the Law, but he basically told me that I could pass it without ever stepping inside a library. This completely turned me off.

So, I told a Lawyer friend of mine about this experience and my friend recommended that I check out University of Malaya external B.Juris programme instead and they broke no such nonsense.

I can still remember the speech given by the Dean of the faculty during his welcoming address for new students that, a library is the most important tool for a Lawyer and that a library is to a lawyer what a lab is to a scientist. Therefore, we should all learn how to use it. This turned me on.

He went on to extol the many virtues of the UM Law library, which is the largest Law library in the country at four storeys high, housing documents from the 18th century till today. It further excited me when we were asked to actually visit the library to read some of the really old cases.

Man, I realised then that I had made the correct decision in signing up for the programme at UM.

As for the lecturers, I was fortunate enough to learn from some of the best professors in the field. Many of our lecturers were already retired or at the verge of retirement and had spent much of their lives working in their specific area. These people were really walking libraries of authorities. They each had their little eccentricities too!

During the programme itself, I realised that it was essential to learn Malaysian Law rather than English Law. While the legal skills may be the same, the specific legal principles can be completely different between the two, such as past consideration and many others.

Also, learning Malaysian Law exposed me to Syariah Law essentials as well. This helped me to further understand the problems faced by the dual legal system practiced in the country. What was a little unfortunate is that the programme did not focus much on the laws of Sabah and Sarawak.

Anyway, after going through the programme for the last few years, I have to say that I never regretted signing up for it.