Chamber Of Knowledge

Man's Application To Change His Name

2011-05-26T16:32:00.000+08:00

As he went through an operation to become a woman, now he argues that he's facing problems because the name is still a man's name. He wants to change it - to the woman's name. He made an application before the court. And seriously it is not an easy decision to be made.

“If the court allows a name change, we fear it might have an impact on society.

“It is a difficult decision,” he said.

High Court Judge Datuk Mohd Yazid Mustafa set July 18 for the decision for that complicated case. I am sure Malaysians will be waiting for that decision because if court allows the application, the fear is that it will open a floodgate.

That group of people will be keep coming to the High Court for name changing if on this July 18 such application is allowed. Thus, sit tight, wait patiently and we will see how the decision will be made by the High Court.

LL.B (Hons) @ B. (Hons.) of Law | Program Details

2011-05-09T15:18:00.000+08:00

LL.B (Hons) also known as B. (Hons.) of Law [bearing the code LW222] is professional degree in legal study conducted in Faculty of Law, UiTM Shah Alam. Those who did their B. (Hons.) of Legal Studies have option whether to futher their study in this professional degree or not.

However it is strongly recommended for students to further in LL.B (Hons) because without it, the degree program is kind of incomplete. But this program also required the students to achieve fulfill the requirement of CGPA. To secure the place, at least 2.80 or better to get 3.00.

Here the extract of program details from Faculty of Law, UiTM Shah Alam official website:

This is a one year professional training programme for graduates with an LL.B or BLS (Hons) from UiTM or its equivalent. This programme is conducted over two semesters with the aim of developing the skills required of an Advocate and Solicitor. The programme is conducted by a combined team of lecturers with extensive practical experience as well as practicing lawyers with high standing in the profession. External examiners, both local and foreign, are appointed to ensure that high international standards are maintained. Unlike other law programmes, the students work in a law office simulated environment. The students are provided with a practitioner’s office – like settings and are required to work in mock law firms. The programme structure has been designed in such a way that students will actually get a hands-on experience of legal practice to prepare them for the real legal world.

[source]

One thing for sure. LL.B is totally different whole world compared to you BLS life. So be ready and be prepared. Life will be never be same again once you step in fellas.

Part One LL.B (Hons) UiTM: Introductory Stage

2011-05-04T07:48:00.000+08:00

For those of Part Six students of Bachelor in Legal Study, UiTM who choose to go for LL.B, you're making a right decision. I believe all of you have heard people talking about how important to complete your legal course by going through the LL.B. I don't have any wise advice for all you who will be stepping to LL.B later when you get your offer letter.

But to start, here the List of Subject for Part 1 LL.B UiTM Shah Alam in the event if there is no changes be done by the Faculty with regard the subjects that you will be taking for Part One.

1. Law of Evidence I
2. Advanced Criminal Procedure I
3. Advanced Civil Procedure I
4. Remedies
5. Non-Contentious Legal Matters
6. Solicitors Account
7. Criminal Trial and Advocacy
8. Forensic Science
9. Bahasa Melayu Undang-Undang

So enjoy your 4 months holiday while waiting your LL.B offer letters. Once you get it, start to prepare yourselves physically, mentally and emotionally. Learn to suit and blend with people that you rarely know. Learn to be patience and co-operative. Learn the art of give and take. Because these all what you gonna do when you're stepping in LL.B world.

Plea Bargaining

2010-12-14T11:34:00.001+08:00

Blog ini sudah bersawang. Mujur co-author ada menerbitkan informasi-informasi berguna sepanjang 2010. Saya tidak pasti jika blog ini akan masih wujud pada tahun pertama kerana saya nampaknya tidak punya banyak masa untuk blog ini.

Untuk menghidupkan sedikit blog, saya kongsikan sedikit maklumat yang saya peroleh daripada Berita Harian Online tentang "plea bargaining".

'Plea bargaining' di mahkamah
Oleh Ahmad Johari Mohd Ali dan S Anand Kumar
anand@bharian.com.my
2010/12/14

Hukuman diringan jika tertuduh kes jenayah kali pertama mengaku salah secara sukarela

KUALA LUMPUR: Kaedah 'plea bargaining' atau rundingan bagi pengakuan bersalah untuk mengurangkan pertuduhan dan hukuman terhadap tertuduh sesuatu kesalahan jenayah akan dilaksanakan di mahkamah Malaysia tidak lama lagi.

Melalui kaedah itu, seseorang tertuduh diberi peluang untuk mengaku bersalah tanpa perlu melalui perbicaraan penuh di mahkamah dengan hukuman yang dikurangkan sehingga maksimum 50 peratus daripada yang termaktub dalam akta.

Bagaimanapun, kaedah itu hanya untuk pesalah kali pertama dan dilakukan secara sukarela.

Ketua Hakim Negara, Tun Zaki Azmi, berkata melalui kaedah itu tertuduh boleh mengetahui hukuman yang dikenakan jika dia memilih mengaku bersalah tanpa melalui proses perbicaraan.

Katanya, kaedah rundingan bagi pengakuan bersalah yang diadakan di antara pihak pendakwaan dan pembelaan bukan saja dapat menyegerakan penyelesaian kes jenayah, malah juga membantu mengatasi masalah kes tertunggak dan beban mahkamah.

“Dengan cara ini lebih banyak orang kena tuduh (OKT) akan mengaku bersalah dan kes berkenaan tidak perlu melalui perbicaraan penuh dan kes jenayah juga dapat berjalan lebih lancar,” katanya selepas merasmikan Persidangan Tahunan Kedua Majlis Hakim Malaysia di sini, semalam.
Seramai 128 Hakim Mahkamah Tinggi, Mahkamah Rayuan dan Mahkamah Persekutuan menghadiri persidangan selama tiga hari itu.

Zaki berkata, penggunaan kaedah ‘plea bargaining’ diperuntukkan mengikut Seksyen 172 Kanun Acara Jenayah (Pindaan) 2010 yang diluluskan Parlimen, Jun lalu.

Beliau berkata, garis panduan berhubung pelaksanaannya sedang disediakan Pejabat Peguam Negara dengan kerjasama Majlis Peguam dan mahkamah.

Sementara itu, Hakim Mahkamah Persekutuan, yang juga Hakim Pengurus bagi Mahkamah Jenayah, Tan Sri Zulkefli Ahmad Makinudin berkata ‘plea bargaining’ perlu ditawar dalam masa 30 hari selepas seseorang itu didakwa, dan sekiranya tiada pilihan diterima selepas 90 hari, perbicaraan penuh akan dijalankan.

Beliau berkata, sebaik saja hukuman diumumkan, kedua-dua pihak tidak boleh merayu terhadap keputusan di mahkamah lebih tinggi, kecuali atas alasan teknikal.

Mengikut pindaan itu, hakim juga boleh memanggil yang dituduh secara tertutup, bagi memastikan permohonan dibuat secara sukarela.

Zulkefli berkata, ketika melaksanakan satu penyelesaian yang memuaskan hati dalam sesuatu kes, adalah menjadi tugas mahkamah untuk memastikan bahawa kaedah ‘plea bargaining’ itu dilaksanakan secara sukarela oleh semua pihak terbabit.

Dalam pada itu, Majlis Peguam yang ditanya mengenainya berkata, pendapatan peguam tidak akan terjejas apabila rundingan bagi pengakuan bersalah di antara pihak pendakwaan dan pembelaan dilaksanakan kelak.

Presidennya, Ragunath Kesavan, berkata walaupun bayaran guaman akan kurang kerana tiada perbicaraan penuh, tetapi bukan semua kes akan dibawa melalui proses itu kerana ia tertakluk kepada persetujuan pihak pendakwaan.

“Saya tidak melihat sesuatu yang negatif dengan pelaksanaan proses ini kerana ia memberi hak kepada tertuduh dan peguam pula bertindak untuk kepentingan anak guamnya,” katanya yang menyambut baik pelaksanaan kaedah itu.

INFO

# 'Plea bargain' atau rundingan bagi pengakuan bersalah diadakan di antara pihak pendakwaan dan pembelaan sebagai insentif bagi tertuduh memilih untuk mengaku salah, tanpa perlu melalui proses perbicaraan.

# Konsep ini yang diwujudkan untuk mengurangkan jumlah kes tertunggak di mahkamah dibahagikan kepada dua iaitu rundingan bagi pertuduhan dan rundingan bagi hukuman. Melalui rundingan pertuduhan, tertuduh boleh mengaku salah kepada pertuduhan lebih ringan atau didakwa dengan sebahagian daripada beberapa tuduhan asal dikenakan.

# Bagi rundingan hukuman, tertuduh diberitahu terlebih dulu hukuman yang bakal dikenakan terhadapnya jika memilih mengaku salah bagi tuduhan dihadapinya.

# Konsep ini digunakan bagi hampir 90 peratus kes jenayah di Amerika Syarikat. ‘Plea bargain’ turut diamalkan di Pakistan, India, England dan Wales serta Victoria, Australia, selain di Itali, Jerman dan Perancis.

Sumber: Berita Harian Online

Consitex SA v TCL Marketing Sdn Bhd [2008] 8 CLJ 444 – High Court

2010-09-21T08:25:00.000+08:00

The Plaintiff is the registered proprietor of the trade marks “ZEGNA” and “ERMENEGILDO ZEGNA” in Malaysia in respect of clothing, boots, shoes and slippers. The garments bearing the Plaintiff‟s trade mark had been sold in Malaysia since 1992. Defendant had been trading under the “EMMER ZECNA” trade mark for garments since 1997. Defendant applied to register “Z EMMER ZECNA & Device”. The Plaintiff opposed the application and argued that the trade mark “EMMER ZECNA” was confusingly similar to the Plaintiff‟s registered trade marks and thus amounts to infringement of its trade marks. Defendant contended that the marks were not identical and did not so closely resemble the Plaintiff‟s trade marks as to be likely to deceive or cause confusion in the course of trade. Plaintiff‟s claim was dismissed by the High Court.

When applying the test laid down in Re Pianotist and Tohtonku of whether a mark is likely to deceive of cause confusion, the comparison of the marks, visually and orally, must be done in its entirety. The Court held that there were substantial and significant differences between the marks which would not give rise to confusion in the market. It was also held that there was no likelihood of consumers being deceived at the point of sale as the distribution channels are different. Plaintiff‟s garments are sold in boutiques located in exclusive locations whereas the Defendant‟s garments are sold in island counters in departmental stores, supermarkets, and shopping outlets in shopping malls. The Plaintiff‟s and Defendant‟s goods are not in direct competition.

Plaintiff also failed to show evidence that there was such a “wrong purchase” in the mistaken belief that the Defendant‟s goods were the same as that of the Plaintiff. The survey report tendered by the Plaintiff had not provided any direct evidence as it was conducted post date of the writ and prior to the trial and not prior to the filing of the writ. The Plaintiff had failed to discharge their burden of proof on a balance of probabilities to satisfy the Court that Defendant had infringed Plaintiff‟s registered trade mark or had passed off their products as that of the Plaintiff‟s products.

McDonald’s loses court battle against McCurry

2010-09-14T13:53:00.004+08:00

PUTRAJAYA: Fast food chain McDonald’s Wednesday lost its exclusivity to the use of the prefix “Mc” when the Court of Appeal here allowed a local Indian food outlet, McCurry Restaurant, to use “Mc” in its business signage.

Appeal Court judges Datuk Gopal Sri Ram (now Federal Court judge), who sat with Justices Datuk Heliliah Mohd Yusof and Datuk Sulong Matjeraie, held that there was no evidence to show that McCurry Restaurant of Jalan Ipoh, Kuala Lumpur, was passing off McDonald’s business as its own.

“Where the learned judge, with respect, erred is to assume that McDonald’s had a monopoly in the use of the prefix ‘Mc’ on a signage or in the conduct of business. “In my judgment, the irresistible inference to be drawn from the totality of the evidence is that McCurry’s Restaurant signboard would not result in reasonable persons associating McCurry with the McDonald’s mark.

“For the reasons given, I would allow McCurry Restaurant’s appeal and reverse the findings of the learned judge,” said Sri Ram in his 18-page written judgement. He said the fact that McCurry Restaurant chose the name “McCurry,” could not, by itself, lead to the inference that it sought to obtain an unfair advantage from the usage of the prefix “Mc.”

“You have to look at the plaintiff’s (McDonald’s) getup or logo as a whole ... it consists of a distinctive golden arched ‘M’ with the word, McDonald’s, against a red background. “The defendant’s (McCurry) signboard carried the words ‘Restoran McCurry’ with the lettering in white and grey on a red background with a picture of a chicken giving a double thumbsup and with the wording, ‘Malaysian Chicken Curry.’

“Thus, the defendant’s presentation of its business is in a style and getup which is distinctly different from that of the plaintiff,” said Sri Ram, adding that none of the food items on the menu card served at McCurry Restaurant carried the prefix ‘Mc’ unlike the items of food available at McDonald’s. “It would have been different if McCurry Restaurant had offered to its customers, items that were labelled either the same as or similar to those sold by McDonald’s, for example McFish or McLamb,” he said.

Sri Ram also said that the type of food available at a McDonald’s outlet was very different as it served fast food whereas McCurry catered only typically Indian food. “There is evidence to show that the type of customers who patronise the defendant’s outlet is very different from those who patronise the plaintiff’s several outlets,” he said, adding that the former was patronised by adults and senior citizens while the latter was mainly by children.

On Sept 7, 2006, the High Court held that the McDonald’s fast food chain, a household name among children, had the exclusive right to the prefix “Mc” and ordered McCurry Restaurant (KL) Sdn Bhd to pay damages to McDonald’s Corporation, the proprietor of the McDonald’s chain of restaurants. In her ruling, Justice Siti Mariah Ahmad said by using the words “McCurry” and employing a signage which featured colours that were distinctive of McDonald’s, McCurry Restaurant was indulging in acts that could give rise to confusion and deception.

McDonald’s, in its statement of claim, said it created the prefix “Mc” as a trademark and that with the usage of the prefix “Mc,” together with the word “Curry,” McCurry Restaurant, which was formerly known as Restoran Penang Curry House (KL) Sdn Bhd, had misrepresented itself as being associated with McDonald’s business.

McCurry Restaurant, in its defence, contended that McDonald’s could not claim monopoly or exclusive rights to the use of the prefix “Mc,” as that prefix was extensively used around the world as surnames, particularly by people of Scottish origin.

McCurry Restaurant said the menu was essentially Malaysian and Indian cuisine consisting of teh tarik, roti canai, nasi lemak, nasi briyani, fish head curry, chicken tandorri, naan bread, tosai, chappati and various chicken and mutton curry dishes, which were totally different from those available in McDonald’s restaurants which comprise food typically found in western food restaurants such as burgers and french fries.

McDonald’s was represented by counsel S.F. Wong while counsel Sri Dev Nair appeared for McCurry. -- Bernama

Source:
http://thestar.com.my/news/story.asp?file=/2009/4/29/nation/20090429182848&sec=nation

Model Answer [Element (c)]

2010-09-14T13:40:00.000+08:00

Indication of connection

The purpose of trade mark is to indicate a trade connection between the proprietor of the mark and his goods. The expression “so as to indicate” makes it clear that it is sufficient if the mark is so used that it will indeed indicate a single trade origin.

Case: Bass v Nicholson [1932] 49 RPC 88

Nicholson marked barrels of beer with a letter “N” in a triangle in order to indicate a particular type of bear which he sold (quality mark). Bass, who owned a registered trade mark consisting of a triangle, sued for infringement. The evidence showed that customers recognised the N mark as indicating beer sold by Nicholson notwithstanding the original intention of the owner that it to be used primarily as a quality mark. The court held that the mark indicated a particular trade connection and was held to be trade mark. No issue of infringement arose since the N mark was used as indication of origin rather than the triangle so as to negate the element of confusion by customers.

Connection in the course of trade

The required connection between the mark and its owner must be one ‘in the course of trade’. The question of whether a mark functions as a trade mark is a question of facts and there can be no trade in goods which are given away free.

Case: “Hospital World” TM [1967] RPC 595.

In this case, free distribution of applicant’s journal which was published as a vehicle for the advertisement of applicant’s products (hospital and medical apparatus) was held not use as trade mark in relation to printed publication, and that “trade” means the trade in which the applicant is engaged.

Case: Aristoc v Rysta [1943] 60 RPC 45.

The House of Lords decided that a mark placed on stockings to indicate that they had been repaired by the owner of the mark was not a trade mark. A trade connection requires that there be an “association with the goods in the course of their production and preparation for the market”.

Case: “Revenue” TM [1979] RPC 27.

The UK Registrar held that orders for goods to be manufactured for the trade mark owner and his instructions that they bear his trade mark was sufficient to constitute use of the mark ‘in the course of trade’ although no goods actually existed at the relevant time.

Case: Unilever (Striped Toothpaste) [1980] FSR 280.

In the tube as sold, the toothpaste was white but on extrusion red stripes were added to it by means of a device in the nozzle. The applicant wished to register a visual representation of toothpaste with red stripes. The UK Registrar held that the mark was not used in the course of trade since it did not come into existence until after the purchaser had taken the goods home at which time trade in them had ceased.

Model Answer [Element (b)]

2010-09-14T12:53:00.000+08:00

The definition of trade mark under section 3(1) provides that “trade mark” means “a mark used or proposed to be used in relation to goods or services...”. By implication, at the application stage for registration, a mark does not have to be in use and that mere intention to use it as trade mark is sufficient. Further, it does not necessarily follows that the applicant has to strictly provide evidence that the mark has in fact been used by the applicant at the date of the application except where it is necessary for him to establish that the mark had acquired distinctiveness through such use.

Case: Yong Sze Fan & Anor v Sharifah bt Mohd Tamin & Others [2008] 5 AMR 163.

The Applicants claimed that they were the first users of the trade mark TAMIN and claimed that the first respondent’s trade mark TAMIN was an entry wrongfully entered or remaining in the register. In support for their claims, the Appellant brought forward evidence upon which they asserted that they had used the mark since 1990 and evidence as to the sales and promotion of products bearing the mark concerned.

However, the court held, inter alia, that the respondent had adduced unrebutted evidence of extensive sales and promotion of the products using the mark since 1951.

The same principle also goes to services mark. In addition to such principle, section 3(2)(c) provides the requirement of use for service mark that “references to the use of a mark in relation to services shall be construed as references to the use thereof as a statement or as part of a statement about the availability or performance of services”.

It is not necessary for a trade mark to be used on the goods or services themselves. This is by virtue of section 3(2)(b) that provides “references to the use of a mark in relation to goods shall be construed as references to the use thereof upon, or in physical or other relation to, goods”. For example, a mark attached in advertising purposes is not use on the goods themselves but it is use in relation to the goods.

Model Answer [Element (a)]

2010-09-14T12:13:00.000+08:00

The expression “mark includes...” under section 3(1) shows that the definition is purposely not limited to the precise words (a device, brand, heading, label, ticket, name, signature, word, letter, numeral or any combination thereof) and therefore it follows that the definition given is not exhaustive. Nevertheless, a mark must be ejusdem generis with the examples given in the statutory definition.

Among the examples given, the statute silence as to what constitutes “a device” and this might give rise to some difficulty. Reference may be made to the case of Smith, Kline & French [1976] ROC 511, Coca-cola case [1987] RPC 245 and Reddaway’s Application [1927] 44 RPC 2.

Case: Smith, Kline & French [1976] ROC 511.

[Please refer to the previous entry for further reading] The House of Lords held that a may cover the whole of the visual surface of the goods. It must be something that can be represented visually and may be something that can be applied to the surface of the goods or incorporated in the structure of the goods. The capsules themselves were not the mark but the color that covers the whole of the visible surface of it.

This case is authority for the preposition that a mark may be three-dimensional and that a mark may cover the whole surface of the goods. Therefore, it was later held that a mere container, no matter how orginal in design, nor how famous, could not be a mark.

Case: Coca-cola case [1987] RPC 245.

[Please refer to the previous entry for further reading]

Case: Reddaway’s Application [1927] 44 RPC 2.

This case illustrates the effect of unusual devices applied on goods, the method of which had never been practiced by any other trader. In this case, the court held that coloured threads running the length of hose (Blue Red Blue lines) was a trade marks. Therefore, a scheme of colouring applied to goods may be a mark.

Descriptive words may be registered as a trade mark only if it has acquired a secondary meaning. What is secondary meaning? Secondary meaning refers to a situation whereby the consumers associated the descriptive words used as the trade mark exclusively with the proprietor’s goods. This may be seen in the following case.

Case: Blue Paraffin TM [1977] RPC 473.

The owner of the proposed trade mark submitted his registration application with respect to his paraffin. It has been disputed that the words to be descriptive of the character of the goods and therefore registration ought not to be granted. However, the court found the applicant after having regards to the evidence that the mark had by reason of its customers came to be identified with the applicant’s paraffin and that there was counterfeit paraffin dyed in blue by rival traders in order to reap an advantage from the reputation the applicant mark had enjoyed.

Another important point worth mentioning as far as mark is concerns is the visibility of the trade mark on the products. Section 3(2)(a) provides that “references to the use of a mark shall be construed as references to the use of a printed or other visual representation of the mark”. There is nothing in the definition of the mark or in the reference to visual representation under the aforementioned provision which expressly directed to the size of the mark. This issue had been examined in the following case.

Case: Unic S.A v Lyndeau Products Ld (1964) RPC 37.

In this case the mark was a word “Everglide” applied on a pen. Though the mark was very tiny and could not readily be seen but was held a trade mark by the court.

Model Answer [Outline]

2010-09-14T10:57:00.000+08:00

Based on the literal construction of section 3(1), it can be concluded that a trade mark consist of the relevant elements:

a) A mark;

b) Used or proposed to be used in relation to goods and services; and

c) An indication of a connection between the goods and the proprietor of the goods, either as an indication of origin or an indication of quality.

Therefore the scope of the discussion as well as the accompanying decided cases will be confined to the above elements.

Under element (a) that a trade mark consist of a mark, there are several important principles that need to be taken into account. Firstly, what constitute a mark? The answer to this question may be found in the following case:

i. Smith, Kline & French [1976] RPC 511.

ii. Coca-cola [1987] RPC 245.

iii. Reddaway’s Application [1927] 44 RPC 27.

iv. Blue Paraffin T.M [1977] RPC 473.

[Each of the aforementioned cases will be discussed in the full model answer]

The second principles in concerning the visibility of trade mark. Reference may be made to:

I. Section 3(2)(a).

II. Unic S.A v Lyndeau Products Ld (“Everglide” trademark) [1964] RPC 37.

Under element (b) that used or proposed to be used in relation to goods and services, reference may be made to:

I. Section 3(2)(b).

II. Section 3(2)(c).

Under the final element (c) that “indication of connection” and “connection in the course of trade”, the following cases may be relevant:

I. indication of connection

i. Bass v Nicholson [1932] 49 RPC 88.

II. connection in the course of trade

i. Hospital World [1967] FSR 27.

ii. Aristoc v Rysta [1943] 60 RPC 45.

iii. “Revue” T.M [1979] RPC 27.

iv. “Unilever” (Striped toothpaste)[1980] FSR 280.

M’sian firm loses trade mark right to use word “Ponni” for rice variant

2010-09-13T10:36:00.000+08:00

KUALA LUMPUR: In the first case of its kind, a Malaysian company lost its bid to retain exclusive rights to use the word “Ponni” for a variant of rice as the company’s trade mark. The High Court, in its first case of recognition of Geographical Indication (GI) in Malaysian, ruled Tuesday that Syarikat Faiza Sdn Bhd was not entitled to retain the word “Ponni” exclusively when selling rice.

GI means a protection of particular product coming from particular jurisdiction. Judge Justice Azahar Mohamed said that “Ponni” was a descriptive variety of rice originating from Tamil Nadu and that it was recognisable to consumers in such a manner. In allowing a civil action by six Indian applicants Tuesday, Justice Azahar concluded that Syarikat Faiza was not entitled to register the word “Ponni” as a trade mark.

“I conclude that the entry of Ponni trade mark in the Register of Trade Marks in Malaysia is an entry wrongly made and wrongfully remaining in the register under Section 45 of the Trademark Act 1976,” he said. In elaborating, Justice Azahar said “Ponni” was not a word invented by the respondent and that the word was another name for the Kaveri river in Tamil. That rice variant is grown in that river delta.

He said the use of “Ponni” by respondent as trade mark was bound to cause confusion and that consumers would be misled. Justice Azahar ordered that the “Ponni” trade mark registration by Faiza be expunged and removed from the Malaysian Register of Trade Marks.

The judge also directed the Registrar of Trade Marks to rectify the matter by removing the whole entry relating to the trade mark registration and its removal to be published in the Government Gazette. Speaking to reporters, the applicants’ lead counsel Karen Abraham, said this was the first case on GI protection with the court recognising a variety of rice from a particular place.

Karen said the ruling was also favourable to Malaysian consumers as they would have more access to “Ponni” rice as it could be distributed more extensively. The ruling was made in relation to a civil action filed by the Agricultural and Processed Food Products Export Development Authority of India (APEDA), Tamil Nadu Agricultural University (TNAU), Indian farmers and two exporters on Jan 22 this year.

APEDA is an administrative body that is empowered to safeguard and enforce the rights of Indian agriculture on behalf of Indian Government. TNAU was responsible for developing the “Ponni” rice variety in 1971 and is the author of the “Ponni” mark.

The Indian farmers and exporters are all stakeholders in the “Ponni” mark and claimed that the exclusive rights over the usage of word as a trade mark granted to the respondent would affect their ability to trade in “Ponni” rice.

In the court documents, six applicants claimed that “Ponni” rice was named after and in tribute to the Kaveri Delta region in India. They claimed that trade mark for “Ponni” was wrongly entered in the Malaysian Trade Marks Register under the name of the Faiza as the respondent was neither the proprietor of “Ponni” as a trade mark, nor the author of the name.

In the March 15 affidavit, Faiza’s sales and marketing manager Fazaruddin Ibrahim said the company was the valid holder and registered owner of “Ponni” trademark and handled their rice business in the name and style of “Beras Taj Mahal” and/or “Beras Faiza Herba Ponni”.

On June 6, 2000, Faiza filed an application for the registration of the name “Ponni” as a trade mark in relation to “rice”. The trademark was subsequently advertised in the Government Gazette on Oct 27, 2005 and was entered in the Trade Mark Registers on Jan 20, 2006.

Source: http://thestar.com.my/news/story.asp?file=/2010/8/17/nation/20100817161149&sec=nation

Registrability of Trade Mark [2.0]

2010-08-04T15:37:00.010+08:00

Registrability of Trade Mark – Geographical Name

There is strong precedent derived from decided cases that a geographical name is prima facie unregisterable due to lack of inherent distinctiveness. Further, no one should be able to monopolise a geographical name since this may impose unreasonable restraints on other traders who may also wish to use that name in their course of trade.

However, such preposition of law is not exhaustive and is subjected to several exceptional circumstances.

Case: Yorkshire Copper Works Appn (1954) 71 RPC 150

“For just as a manufacturer is not entitled to a monopoly of a laudatory or descriptive epithet, so he is not to claim for his territory whether country or town, which may be in the future, if it is not now, the seat of the manufacturer of goods similar to his own.”

This case indicates that geographical names can only be registered if they are distinctive of the goods or in other words, the name possesses some inherent ability to distinguish. The distinctiveness here means until and unless no other traders would honestly think of using that geographical name in relation to similar goods in the course of their trade, then the geographical name may be registered.

Further, the significant of the above case lies on the principles that a geographical name may be registered if it is not known for the goods or services for which it is used.

The above preposition supports the registration of ‘Arctic’ and ‘North Pole’ for bananas.

Statutory provisions in Trade Mark Act 1976

Section 10(1)(d) provides that

In order for a trade mark to be registered, it shall contain or consist of at least one of the following particular: (d) a word having no direct reference to the character or quality of the goods or services not being, according to its ordinary meaning, a geographical name or surname.

The phrase ‘according to its ordinary meaning’ cited in the above statutory provision illustrates the requirement of inherent distinctiveness for a geographical name to be registered as trade mark.

There is another statutory provision worth mentioning as far as the geographical name is concerned. Upon this effect, section 14(1)(a) is equally relevant.

A mark or part of a mark shall not be registered as a trade mark (a) if the use of which is likely to deceive or cause confusion to the public or would be contrary to law.

Thus, in a situation, for example, where there is a mark called “Chinese White Porcelain” for porcelain not made in China, the geographical name used as the trade mark is deemed to be deceptive since China is known for porcelain and any reasonable man upon looking to the mark might believe that the porcelain is actually originated from China.

There are several factors that need to be taken into consideration in examining or assessing the distinctiveness of a particular geographical name before it is to be admitted in the register.

a) The question on whether the trade mark is a geographical name of the goods’ origin;

b) The question on whether a reasonable man viewing the marks may actually believed that the goods concerned come from the geographical name used; and

c) Whether the geographical name used is noted for the goods concerned, need to be satisfied.

Picture credit: http://www.copyrightblog.com/wp-content/uploads/2009/10/Trademark-Law.jpg

General principles [1.2]

2010-07-28T00:30:00.004+08:00

Case: Coca-Cola Trade Marks [1986] R.P.C 472

The House of Lords rejected an appeal against an application to register the coca-cola bottle as a trademark and held that

“the word ‘mark’ both in its normal meaning and its statutory definition is apt only to describe something which distinguishes goods rather than the goods themselves. A bottle is a container, not a mark”.

According to Lord Templeman, such an application if allowed, may lead to the perpetual monopoly on the design of containers.

“A rival manufacturer should be free to sell any container or article of a similar shape provided it was labelled or packaged differently in such a way as to avoid confusion as to the origin of the goods on the container”.

Lord Templeman’s decision in Coca-Cola has been reversed in the UK by legislation implementing the European Union trade mark directive, the first shape-based registration application under the new UK law included the coca-cola bottle.

Case: Smith, Kline and French \laboratories Ltd v Sterling – Winthrop Group Ltd [1976] 93 R.P.C 511

It this case, there was an application to register coloured capsules for drugs. The capsules were made in two halves, one coloured, the other half was transparent through which the tiny multi-coloured pellets could be seen. The applicants attempted to register the whole external appearance of the capsules. An argument was raised in the court that colour combination could not be considered a trade mark.

The House of Lords held that there was nothing in the Trade Mark Act 1938 which excluded a mark which covers the whole surface of the goods, nor was there anything to prevent a three dimensional mark being a trademark. The distinctiveness of the capsules was important as the capsules were inherently adapted to distinguish the goods of the applicants from other traders.

Picture credit: http://www.copyrightblog.com/wp-content/uploads/2009/10/Trademark-Law.jpg

General Principles [1.1 ]

2010-07-22T14:36:00.013+08:00

In Malaysia, the traditional concept of ‘mark’ as opposed to the wider concept of ‘signs’, as provided under TRIPS and statutory provision of other countries such as UK, is still retained.

Registrability of a single colour

Case: BP Amoco Plc v John Kelly Limited and Glenshane Tourist Services Limited [2000] NIEHC 18

The plaintiff is a well-known multinational corporation which is concerned in exploration for and production of oils, fuels and gas. It brings this action against the first defendant, a Northern Ireland registered company also involved in the sale and distribution of oils, fuels and lubricants though on a much smaller scale.

BP contended that the defendant are infringing BP’s UK registered trademark by using the colour green on the whole or a substantial part of the exterior of the TOP (the trade name of defendants’ petrol filing station in Northern Ireland) and that they are thereby committing the tort of passing off their TOP branded filling stations as BP or as otherwise connected with BP’s business. Therefore, BP seeks injunctive relief and other remedies arising out of the alleged infringement of rights.

Under section 1(1) of the UK Trade Mark Act 1994, “trade mark” means

“any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings”.

The court considered the ruling in William Wrigley Junior Company’s Application [1999] ETMR 219 that:

“A colour per se without an associated shape as in the present case is protectable as a trade mark since it falls within the meaning of the word ‘any sign’. That wording must be interpreted as a very broad open and general tem encompassing all conceivable types of marks. To restrict the protection of colour marks to a specific presentation would be contrary to the spirit of community trade mark”.

On the issue as to whether the colour alone signifies BP when the logo was removed, the court accepted the finding of the fact that confusion was likely when drivers travelling at speed first saw a service station, where they would only be able to see its green colour but no other distinguishing character. Further, the court ruled in negative on the issue of whether defendant could escape liability by adding other element to distinguish between their mark and that of BP’s.

The long held view that a single colour is not registrable has been reversed in this case

3D marks

In Malaysia, there appears to be no specific provision allowing 3D trademarks. In practise, however, representation of a 3D marks has been accepted by the Malaysian Trade Mark Registrar (section 6.26 Manual of Trade Mark Law & Practice in Malaysia (WIPO Geneva 1989). The positive view in support of 3D marks in Malaysia is that the word “device” under section 3(1) of our Trade Mark Act 1976 is sufficiently wide to cover such marks and on the basis of persuasive authority, the English case of Smith, Kline and French Laboratories Ltd v sterling – Winthrop Group Ltd [1976] 93 RPC 511 and Coca-Cola Trade Marks [1986] R.P.C 472 serve as source of assistance.

There have been many instances of three–dimensional marks being successfully registered in Malaysia. Among the best-known examples of this are the registrations of the triangular three-dimensional configuration of the TOBLREONE chocolate bar as well as the three–dimensional mark of Mercedes Benz.

To be continued..

[next post deals with the facts and court rulings of the aforementioned 3D marks cases]

Picture credit: http://www.copyrightblog.com/wp-content/uploads/2009/10/Trademark-Law.jpg

General principles [1.0]

2010-07-11T20:41:00.003+08:00

Click the above slide presentation for clear minute details

Functions of a trade mark

A trade mark serves as an indication of origin as well as indication of the quality of goods. To the purchasing public, trademarks allow product differentiation, assure them of the quality of the goods and even imply its user’s prestige and social standing. To the producers of the goods, the name implies reputation, quality and goodwill of the goods. Recognised trademark build consumer loyalty and allow the products to fetch premium prices.

Case: Mishawaka Rubber & Woolen Mfg Co v SS Kresge Co 316 US 203 [1942]

A trademark is a merchandising short cut which induces a purchaser to select what he wants, or what he has been led to believe he wants. Whatever the means employed, the aim is the same; to convey through the mark, in the minds of potential customers, the desirability of the commodity upon which it appears. Once this is attained, the trade mark owner has something of value. If another poaches upon the commercial magnetism of the symbol he has created, the owner can attain legal redress.

Case: Scandia Down Corp v Euroquilt, Inc 475 US 1147 [1986]

Trademarks help consumers to select goods. By indentifying the source of the goods, they convey valuable information to consumers at lower costs. Easily identified trademarks reduce the costs consumers incur in searching for what they desire, and the lower the cost of search the more competitive the market. A trade mark also may induce the supplier of goods t make higher quality products and to adhere to a consistent level of quality.

Statutory Definition of Trade Mark

Section 3(1) of the Trade Marks Act 1976 defines “mark” as to include

“a device, brand, heading, label, ticket, name, signature, word, letter, numeral or any combination thereof”

The same section defines “trade mark” as

“except in relation to Part XI, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services and a person having the right either as proprietor or as registered user to use the mark whether with or without an indication of the identity of that person, and means, in relation to Part XI, a mark registrable or registered under the said Part XI”

It can be concluded that a trade mark consist of the relevant elements:

a) A mark;

b) Used in relation to goods and services; and

c) An indication of a connection between the goods and the proprietor of the goods, either as an indication of origin or an indication of quality.

Non-conventional trademark

A non-conventional trademark refers to trademarks which does not belong to a pre-existing category of trade mark. The term encompasses marks which do not fall into the conventional set of marks (eg. those consisting of letters, numerals, words, logos, pictures, symbols, or combinations of one or more of these elements).

Non-conventional trademarks may be divided into visible signs (eg. colors, shapes, moving images, holograms, positions), or non-visible signs (eg. sounds, scents, tastes, textures). Certain types of non-conventional trademarks have become more widely accepted in recent times as a result of legislative changes which expand the definition of 'trademark'. Such developments are the result of international treaties dealing with intellectual property, such as the Agreement on Trade-Related Aspects of Intellectual Property Rights, which sets down a standardised, inclusive legal definition.

Examples of non-conventional trademark include single colour trademarks, motion trademarks, hologram trademarks, shape trademarks (also known as three dimensional trademarks or 3D trademarks), and sound trademarks (also known as aural trademarks).

Points to ponder

The above statutory definition provides that only ‘Mark’ is registerable as trade mark in Malaysia. What is our legal position as regards to other distinguishable signs adopted to differentiate one goods from another such as 3D trademarks and colour trademarks?

To be continued...

Trade Marks Law in Malaysia – An Overview

2010-06-28T15:15:00.009+08:00

Trademarks law is one of important components in Intellectual Property course. Recent development in statutory provisions and international conventions has embarked a new dimension in trademark law in Malaysia. It is not within the ambit of this post to discuss the very details of sub-components thereof. Nevertheless, this post serves as an introductory remark in providing the scope and parameter of the relevant subject matter.

1. Predominantly, the crux of discussion lay within the current provisions and international obligation of

a) Trade Marks Act 1976;

b) Trade Marks Regulation 1997;

c) Manual of Trade Mark Law & Practice in Malaysia (WIPO, Geneva 1989);

d) TRIPs Agreement; and

e) Paris Convention.

Subject to the contrary, students are only permitted to enter the examination hall with the first two documents of authorities.

2. As far as method of statutory interpretation and various tests adopted where infringements are concerned, local cases as well as cases from common law and non-common law countries are material.

3. The relevant topics and angle of discussion, amongst other, includes

a) The general principles of trade marks.

Under this heading, topic such as functions of trade mark, statutory definition of trade mark, and statutory provisions regarding the usage and tenure of trade mark are discussed.

b) Resistibility of trade marks

Under this heading, the nature and criteria of a registered trademark is examined. Often, most of court litigations and civil disputes are concerned with this area of discussion. It concerns with issues such as

i. Whether numbers or technical words or foreign language can be registered as trademark?

ii. Whether the appellant’s and respondent’s marks are identical as to cause deception or confusion among the purchasing public (i.e the consumer)?

iii. Whether the disputed mark is scandalous or contrary to public morality?

iv. Whether the mark is too descriptive or common as to prevent other trades using the same mark (as far as word trade mark is concerned)?

v. What is the position and exclusive protection for well-known or famous marks, be it local or international mark, as distinct to ordinary or newly created mark that has yet bore any reputation? What is the criteria that need to be fulfilled for a mark to be regarded as a well-known mark?

c) Trade mark application and registration

Under this heading, issues regarding who are to be recognised as the proprietor of the mark and whether an importer is a registered proprietor will be discussed. Further, assignment of mark and the position of licences are also to be examined. Similarly, the opposition proceedings between the contesting applicant of new trade mark and the registered proprietor of a trade mark is discussed. In return, question on what are grounds of refusal for a mark to be registered, during the opposition proceedings, is an important sub-element.

d) Infringement and Exceptions

Under this heading, various tests adopted from myriad of decided cases in proving infringement are analysed. Different tests are used for different trademarks, its usage, the nature of the goods, the circumstances in which the mark was used and the potential customer of the goods. Our statutory provisions have underlined several statutory defences where certain act will not be deemed or constituted an act of infringement. This includes, among other, used in good faith, honest concurrent user, parallel importation and other.

e) Grounds for the removal of marks

Under this heading, numbers of statutory provisions that give effect to the removal of marks that are already remained in the register are examined. The ground of removal, among other, includes non-use of trade mark, non distinctive trade mark, deceptive and fraudulent mark. The interests of aggrieved parties are also discussed under this respective heading.

f) Passing off

Passing off deals with the preservation of business goodwill and confer protection over business reputation. It is another creature of intellectual property that has overlapping area with trademarks and copyright. Under this heading, issues such as elements of passing off, similarity of business names, common field of activities and locus of reputation are extensively discussed.

4. If the time permits, there will be ample discussion and summary cases accompanying the progress of this blog throughout the semester. Above others, this piece of writing is intended only to serve as a mere guidance of immature discussion prior to the weekly lecture thus, shall not be seen as an attempt to compete nor even replace the lecture itself.

5. Feel free to rise any comments or personal criticism for the betterment of this academic arena. For everything good, all praise be to Allah, and the rest that remains comes from my personal defect as the join-author of Chamber of Knowledge intelligence platform; Kyle Fahkrurazzi©

What is International Law?

2010-02-18T09:58:00.001+08:00

International Law is one type of the laws exist in the world. For the first view before we concerns the definition of International Law, we must know what matters are regulated by the International Law?

Generally in the modern understanding of International Law, International Law regulates 3 international relationships.

1.    Those between states and states
2.    Those between states and persons
3.    Those between persons and persons from other countries
See the case of Tel-Oran v Libyan Arab Republic

So, there are two common definitions of International Law.

1.    The body of rules and norms that regulates activities carried on outside the legal boundaries of states.
2.    It is the Law of Nations.

Naturally, old things came first before new things can exist. Same goes to the International Law. Before the modern understanding of International Law exists, there was a traditional understanding of International Law. This traditional understanding consists of two common understandings.

1.    International Law encompasses the body of legal rules commonly considered binding on and between states.
2.    It does not apply to relations between states and persons, and between persons and persons from other countries.

The classifications of the International Law can be divided into 3.

1.    Universal Law – law which is thought to be so fundamental or basic that it is binding upon all states in the community of nations whether they have individually consented to it or not.
2.    General Law – body of norms derived from conduct and practices of states in their dealings between each other. Unlike universal law a state which does not consent to a rule of general law is not bound to observe it.
3.    Particular Law – law that is binding upon a particular state because of the conduct and practices of that particular state.

to be continued. . .

Nature of Partnership

2010-02-10T19:42:00.001+08:00

This is might be a lil bit to discuss about the Partnership Law as the topic is almost at the end. But I am of the view that for the purpose of academic, it doesn’t matter even it is a late notes.

I believe you now aware that the Partnership is one of many ways where a person or persons can carry out the business.

So, our relevant references will be mainly the Malaysia Partnership Act and the textbook of Partnership Law in Malaysia by Dr. Samsar Kamar Latif. In your hand you must already have the so called notes which had been given by Assoc. Prof. Mahanum (if you are in her class).

Her notes basically are the extraction from Dr. Samsar’s book. So here, I will try to make a very brief discussion about the nature of the partnership. When we’re talking about the nature of the partnership, our main concern in answering the question is to determine whether the partnership exists or not exist.

Simply said, among the things we have to consider are

1.    Section 2 of the Partnership Act 1961 where here it tells us what is “business”
2.    Section 3 of the abovementioned act. The definition of the partnership which consists three main elements namely i) business ii) in common iii) view of profit.
•    However it must be bear in mind that Section 3 per se is not sufficient to hold that partnership exist between the disputing parties.
3.    Section 4. This section provides the circumstances that not prima facie partnership. ( I may not be able to discuss further of each part in this Section 4, so you shall refer to the notes that we have).
4.    The last one is the case of Aw Yong Wai Choo v. Aried Trading Sdn. Bhd. ( This case will be later discussed in my next posting on partnership law)

Let have a look at Section 2 and 3 first. Sec 2 basically mentions to us that there must be a business and the business within the ambit of Sec 2 includes trade, occupation and profession. Under the partnership law, mainly there are trading partnership and professional partnership. For trading partnership members can be from 2 – 20 while professional partnership members can be from 2 – unlimited. :)

Section 3 is important as well. It defines partnership as the relation which subsists between persons carrying on business in common with view of profit. Therefore first thing first there must be a relation. Partnership is a relationship not an organization. No separate legal entity – this is the main different compared to the company. Basically the relation arises from the partnership agreement – express or implied. It is the source of such relation. Then we can say that it is a relation resulting from a contract. The meaning of relation was discussed in a Singapore Hight Court in the case of Wong Peng Yuen v. Senanyake ( 1962) 28 MLJ 204. (please refer page 2 Partnership Law in Malaysia by Dr. Samsar)

to be continued . . .

The Brief Idea of International Law

2010-01-07T18:21:00.000+08:00

When you are learning, the process of learning, in other perspective, should be harder - in term of the subjects or I may say the syllabus. As the new semester is on International Law is one of the core subject that must be taken by all part five students of Bachelor of Legal Study, UiTM Shah Alam.

International Law also known as Public International Law (PIL) or the other term is Law of Nation. The history of International Law is back to the Roman Age established by Roman people to regulate the contact or relationship between Roman citizens and non-Roman people.

The unreliable and unconvincing source of Wikipedia stated that;

The history of public international law examines the evolution of state practice and the doctrinal developments in international law. In that respect, it is different from international private law and comparative history of constitutional law. Although international law in the modern sense of the word has only existed since about the 16th century, many historians of international law also take ancient history into account as a source for the early development of international legal principles. In that respect, important concepts are derived from the practice between Greek city-states and the Roman law concept of ius gentium (which regulated contacts between Roman citizens and non-Roman people). These principles where not universal however. In East Asia, political theory was based not on the equality of states, but rather the cosmological supremacy of the Emperor of China.

First three main areas to be observed with regard the Public International Law are

The characters of International Law
The sources of International Law
The relationship between state & International Law

to be continued..

As New Semester Is Coming

2009-12-29T12:58:00.000+08:00

As new semester is coming, I am intending to make better of this blog. Hopefully with the coming new year and new semester, I will be able to share more about what we'll learn in new semester.

So lets take a look of the subject we have for semester five.

1. Law of Association
2. International Law
3. Islamic Family Law
4. Jurisprudence
5. Elective
6. Honors Project Paper

So five for finals. Harder than last sem.

Congrats to all friends who have done well for last semester.

Simple Lunch

2009-07-26T15:03:00.007+08:00

I am just having my lunch. The simple lunch at home, however it is not a home made food, it is "a shop made food". LOL! It is okay to have a simple lunch as long as I can fill my empty stomach, plus it is a simple lunch for a simple bachelor like me.Yeah of course, no one to cook for me as well as for all my housemates. :D

Simple lunch for a simple bachelor :D

Alright fellas, previously I posted the entries on Jual Janji, and this time we will continue it.

As in the note before, we know that there are two interpretation of Jual Janji which are

1. strict interpretation
2. liberal interpretation

Here we'll continue to discuss about the strict interpretation. Strict interpretation as in the case of HJ ABDUL RAHMAN V MAHOMED HASSAN, Jual Janji is mere a contractual agreement where the time is of essence. Borrower must pay the amount of loan within the stipulated time, failure to pay withing the stipulated time, the borrower will lose his right over the land.

However there are two exceptions where the time is no longer of essence
when
1. There is conduct of lender to avoid the repayment. So lender breached the performance under the contract, time no longer considered as the essence.
This can be observed

in the case of AHMAD BIN OMAR V HJ SALLEH SYEIK OSMAN (1987) 1 MLJ 338 where the lender was avoiding the borrower when borrower attempted to repay the loan

and

in the case of HALIJAH REJAB V ABDULLAH SAAD (2004) 2 AMR 665 where the lender refused the money from borrower and wanted a letter of confirmation.

2. The lender gives the extention of time to the borrower. By giving the extention of time, it is a waiver to the time as essence.
This can be seen

in the case of ISMAIL HJ EMBONG V LAU KONG HAN (1970) 1 MLJ 213, there is an extention of time of 5 - 6 months to repay the loan with condition the plaintiff (borrower) continue to pay $40 monthly interest.
(this case involve some calculation)
The amount of loan in $2000 - to repay within 8 months with $40 monthly interest. Expiry of 8 months was in March 1960. Borrower failed to pay and lender gave an extention of time of 5 - 6 months to repay the loan with condition the plaintiff (borrower) continue to pay $40 monthly interest. Plaintiff paid $40 monthly interest until October 1965. Borrower, then, offered to pay $3000 but lender (defendant) refused and asked fro $6000 as $2000 for capital and $4000 as profit.
As extension was given, time no longer as essence, therefore plaintiff is entitled to repurchase the land on payment of the sum of money lawfully due to the defendant.

I'm not intended to discuss the case of NAWAB DIN V MOHAMED SHARIFF where it follows the decision in YAACOB LEBAI JUSOH V HAMISAH SAAD (refer previous entry) as well as the case of OTHMAN & ANOR V MEK.

Based on lecture's note on 07 July 2009

Night After Spending Time At Book Festival

2009-07-25T22:40:00.006+08:00

Among the books I just bought this evening

It is a tiring day, after I spent the time with Afiq and Azrul at book festival. Bought eleven books and all the books are relating to literature stuff. So, tonight fellas, nothing to do with my new books, it is time for revision - just a little bit.

We will continue with Jual Janji.

Jual Janji is a type of collateral agreement with 2 elements;

1. borrower to pay the amount of the loan withing stipulated time

2. lender to return the land upon the full payment withing stipulated time

There are two interpretations of Jual Janji based on the case law;

The first interpretation is a strict interpretation and
the second interpretation is a liberal interpretation

In the case of HJ ABDUL RAHMAN V MAHOMED HASSAN (1917) AC 209, there is a strict interpretation of Jual Janji which is Jual Janji is only a contractual arrangment and decided under the law of contract. If borrower failed to pay the loan in stipulated time, he will lost the right to redeem the land.

The liberal interpretation is that Jual Jani is a security transaction. Mortgage is used as reference to interpret Jual Janji, in order to make Jual Janji is similar as mortgage which is a security transaction applied in UK Law - in the case of YAACOB LEBAI JUSOH V HAMISAH SAAD (1950) 1 MLJ 255, in this case Jual Janji is regarded as equitable security transaction where borrower still can redeem the land even though the payment is made out of stipulated time.

However in 1981 in the case of A. KANAPATHI PILLAY V JOSEPH CHONG (1981)2 MLJ 117, the court didn't follow the decision in YAACOB LEBAI JUSOH, where Salleh Abas stated, inter alia, the case of YAACOB LEBAI JUSOH V HAMISAH SAAD can't be followed because it equate Jual Janji with mortgage and mortgage not part of our law.

(to be continue)

Based on lecture's note on 07 July 2009

Late Sleep and Reading "Jual Janji"

2009-07-25T11:11:00.001+08:00

I don't want to make this blog to be to formal to be read. So last night I slept pretty late around 4 am did my stuff on the blogs, blog hoping, commenting the entries and commenting at Facebook.
Around 3 something in that very early morning, I started to feel so sleepy, so before I went for dreaming time, just did some reading on "Jual Janji", plus the first test of Land Law II is just around the corner.

So what we know about "Jual Janji". Jual Janji is a security transaction which was practiced traditionally a long time ago and it is based of the Islamic concept. In Jual Janji, lender (creditor) will advance some money and the borrower (debtor) will transfer the interest of the land to the lender. Borrower required to pay the loan in stipulated time and failure to pay in the stipulated time, the lender can invoke "Jual Putus".

SK Das defined Jual Janji as
a conditional transfer with the right to repurchase or known as conditional sales

while

WE Maxwell defined Jual Janji as
dealing between the owner of the land where he sells his proprietory right to the creditor, upon full payment, borrower can take back the land

After Jual Janji is made and during the period of the loan, lender not suppose to deal with the land because the land is only as security. This was decided in the case of MOHD ISA V HJ IBRAHIM (1968) 1 MLJ 186. In this case there were two Jual Janji agreements, the lender who hold the possession of land in the first Jual Janji agreement, had made the second Jual Janji agreement with the Appellant. Respondent brought an action claiming that the transfer of the land to Appellant (in the second Jual Janji agreement) to be declared void.

(to be continue)

Based on lecture's note on 07 July 2009

The First Hello

2009-07-24T21:44:00.000+08:00

As blogger and a student, to be more specific, as a law student, I always want to share my knowledge with other people as well as with my fellow colleagues. I used to have this one blog called "The Life and Learn" but unfortunately, I didn't have so much time to handle that blog. So I just delete that blog and make a new one with the hope I can manage this one better.

So, here I gonna share with you something about the important to know the law. Yes, it can't be deny, people will just go and seek for the help of lawyer when they are having legal dispute, but in the same time, you yourself must have some knowledge about what you are facing there. For example, when you are buying something from the shop, you involve in contract law. The simplest way to secure yourself when something happen is by keeping the receipt, it is a hard evidence.

If you are employer and employee, you must also have some knowledge about law of tort, law of contract and employment law.

Law is the creature that governing us. Whatever you do, some law is involve and you can avoid it, the thing is people just don't care.

When you are blogging, you are bound to cyber law. So please give your support and if there is a mistake here and there, you inform me and I'll do the correction.

Thanks fellas!

To climb steep hills requires a slow pace at first.
Shakespeare