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Wednesday, April 22, 2015

A domestic patent sucess in the Philippines

The Philippines Star reports on a great example of a medical technology locally invented, patented and deployed for public benefit. Dr. Enrique Ostrea is a Filipino neonatologist. He was concerned about premature infants born in public hospitals with respiratory problems. They often died unnecessarily because there were no ventilators. The price of commercial ventilators was prohibitive for under resourced public hospitals. He was inspired by the sight of nurses hand pumping with inflatable bags to keep babies alive.

The led to a collaboration between Dr. Ostrea and engineers from the University of the Philippines and the Department of Science and Technology. They created the OstreaVent, a simple ventilator driven by pressure and time, which has undergone significant testing and is now an effective and safe alternative to more expensive commercial machines. 

The OstreaVent machine is protected by a patent. The patent was donated to the Breath of Life Foundation a non profit entity which now distributes OstreaVent ventilators around the Philippines. They recently held a fundraising concert to raise more money to distribute more machines.  

Sunday, April 19, 2015

Kopitiam wars in Indonesia - another battlefront

Image result for lau's kopitiam In a continuation of the longstanding Indonesian KOPITIAM wars, (background here) a new case between Phiko Leo Putra operator of Lau's Kopitiam cafe and Abdul Alex Soelystio has been decided in the Supreme Court. Abdul has secured dozens of trademark registrations in many classes for KOPITIAM which is a Chinese translation of coffee shop, previously a generic term across South East Asia including Indonesia.

Hundreds, if not thousands of KOPITIAM cafes exist however. Abdul has been winning cases and is taking enforcement action against the many users of KOPITIAM throughout Indonesia.  In another case, he forced the cancellation of Paiman Halim's KOPITIAM trade mark registration in class 43.

In the current case, Phiko had applied for LAU'S KOPITIAM in Class 43 for cafes and restaurants in September 2013. Phiko claimed that Abdul's registration for KOPITIAM should be cancelled because it is in the public domain. Phiko argued KOPITIAM is a combination of two descriptive words, KOPI ('Coffee' in Indonesian language) and TIAM ('Shop' in Chinese Hokkien dialect). He argued it is widely used for coffee shops especially by the Chinese immigrant community.

The Defendant Abdul claimed that the LAU'S KOPITIAM application is similar to his KOPITIAM trade mark registration. He requested the court to order the Plaintiff to stop his business and pay damage for Abdul's losses.

The Panel of Judges at the Jakarta Commercial Court rejected the Plaintiff's lawsuit. However they also decided that Lau's Kopitiam mark has significant differences to the Defendant's KOPITIAM mark so was not similar.

On appeal in the Supreme Court, the Judges overruled parts of the Commercial Court decision. They confirmed the two marks were in fact similar and that there was infringement and Phiko had to cease use of his Lau's Kopitiam trademark.

The decision is probably right in respect of the similarity. But it does not address the descriptive generic issue, which is also ongoing in another case brought by the Kopitiam Owners  Association. Meanwhile Abdul keeps asserting and winning cases, in his attempt to monopolize an entire industry.

Wednesday, April 8, 2015

Digital ISP liability in Thailand

Image result for thailand internet
There are several areas where control over netizens is exercised in Thailand. The first is insulting the monarchy, lèse majesté. In 2012 an Internet user was convicted of this when she failed to delete from a forum she administered, allegedly insulting comments. The other is the equally vague issue of free speech. There have been several instances of content removal for this reason. It is said that a lack of Safe Harbour protections for ISPs leave them with uncertain liability and therefore they prefer to take down content without much inquiry. Especially as the 2014 coup and martial law has made them more conservative.
2 Digital Economy laws recently passed by the Thai military government make changes. An amendment to the 2007 Computer Crime Act, which makes ISPs liable for offenses such as lèse majesté by their users now provides that ISPs avoid liability only if they can prove that they have complied with the warning and removed the content. In essence it makes removal necessary, to avoid risk. 
Another amendment is meant is for copyright. ISPs are not liable if they do not control, initiate or order the infringement. Only a court order can override this. So for copyright the ISP protection is wider than for the free speech areas. ISPs exercising no control, the so called 'public utility' approach escape liability. Only when they start to take on editorial responsibility will liability arise. 

For now trademarks attract no such specific protection. Secondary liability is not specifically set out, but in practice ISPs do comply with IP holder requests.
IP Holders and ISPs will like the clarity the amendments bring. But beyond this, it will also helps tackle the problem of online infringement by setting clear borders. Because of the influence of Thailand's control of content deemed inappropriate for royal or free speech reasons, ISPs may still find it easier to take content down than risk liability. Free speech advocates may complain, but Thailand is a country with widespread IP problems that may justify such an approach. 

Sunday, April 5, 2015

Cybercrime courts in the Philippines

Image result for cybercrimeThe Philippine Department of Justice says a proposal has been submitted to the Supreme Court for the creation of a Cybercrime Court to deal with cases perpetrated in cyberspace. This is contemplated by the Anti-Cybercrime Law which mandates having specially trained judges to handle cybercrime cases. 
Cybercrimes are those perpetrated through the internet or through online devices.

Offences can include cyber-espionage and intellectual property theft, cybersex cases and so on. IPR cases represent a threat to business and especially small businesses. Threats to consumers are another risk area such as targeted attacks, mobile threats, malware attacks and data breaches. From January to December of 2014, the Philippine National Police's Anti-Cybercrime Group recorded 614 cybercrime incidents, compared to 2013 having only 288 incidents.

IP owners will be interested since the general Philippines courts are very slow for IP cases. Cases are appealed repeatedly without penalty so the average criminal case can last a decade. Specialist courts might help improve this. 

Friday, March 27, 2015

Civil Court damages awards in Indonesia

An infringement case has reached trial in the Central Jakarta Commercial Court and the panel of judges ordered the Defendants to pay 2.5 billion rupiah (USD190,000) in compensation. The case concerned the trademark NAKAMICHI registered in class 24 for textiles by Andy Najarudin.
He found out about infringement of his mark on August 2013 through customer complaints. The defendants comprised a series of infringers involved in the manufacturing, trading and distributing of products bearing the Plaintiff's trade mark: Harry Sucipto, Janwar T. Sucipto, PT Sipatek Putri Lestari, Dhanny S. Suwaji (owner of a business called CV Pansurya), dan Handoko (owner of a shop called Toko Moro Seneng).

Despite what appears to be a large damages award by Indonesian court standards, the Plaintiff's lawyer complained to the media that the award was far below his client's actual losses. A separate criminal case had been filed and one of the Defendants had been sentenced to 3 months imprisonment.

Whether the Plaintiff will get paid is unclear. But this is a strong deterrent message. Too few infringement cases reach the civil courts so this damages claim is a good example.

Tuesday, March 24, 2015

Olympic battles in Indonesia see the IOC victorious

Image result for olympics logoThe Olympic logo wars have been reported previously here. The conclusion of a cancellation case brought against the National Sports Committee of Indonesia (KONI) means KONI is no longer allowed to use a five-ring logo.

The Jakarta Commercial Court ordered the cancellation of KONI's trademark in a lawsuit filed by the Indonesian Olympic Committee (KOI). The Panel of Judges declared that KONI's logo is similar to the five-ring Olympics logo owned by the International Olympic Committee (IOC). This has been used by the organization since 1914 for Olympic events and so the Court considered it a well known mark and that the Defendant had registered the similar mark in bad faith. The court ordered the Directorate of Intellectual Property Rights to cancel KONI's trade mark  registrations in class 16, 18, 24 25. KONI has filed an appeal at the Supreme Court.

Sunday, March 22, 2015

Vietnam civil trademark infringement litigation

Hoa Sen Group, a Vietnamese building material manufacturing group has sued Ho Tat Minh Enterprise for IP infringement in the Tay Ninh Province People's Court on 2 March 2015. Tay Ninh is 100 km NE of Saigon in the Southern part of Vietnam.
Hoa Sen Group alleges that Ho Tat Minh Enterprise has used their trademark on its signboard (left) and in price quotes. Although Hoa Sen Group arranged several meetings to try to resolve the dispute amicably, Ho Tat Minh Enterprise refused to settle. Ho Tat Minh Enterprise maintains that they are making fair use of the HOA SEN mark as they are selling Hoa Sen Group's products.

Hoa Sen Group, the plaintiff, registered the infringed mark at the National Office of Intellectual Property (NOIP) so have grounds for pursuing the case. Vietnam's legal system does not directly address the issue of "honest use", however, an equivalent is regulated in Article 125.2h of  Vietnam's Law on Intellectual Property, which states that IPR holders shall not have the right to prevent others from using in an honest manner people's names or marks descriptive of the goods or services. Tay Ninh Province People's Court is still considering the case.

Thursday, March 19, 2015

Trial and appeal leaves uncertainty over preliminary injunctions in Indonesia

Image result for Bung Karno: Indonesia Merdeka
The Soekarno film dispute reported here was the first Temporary (Provisional) Anton Pillar / Injunction order granted in Indonesia under its 2012 rules.
The case continued on to trial and appeal and a number of problems arose. The first was that the Plaintiff claimed in the lawsuit that she was the creator of the film "Bung Karno: Indonesia Merdeka". She claimed this was turned into the movie entitled "SOEKARNO". She claimed that there was a cooperation agreement to jointly produce the movie. Thus there was infringement of her copyright by the production of a movie otherwise than per that agreement.
The Defendants argued that the Plaintiff's contribution to the movie was only as areference (she is one of Soekarno heirs) and not as creator of the script used for the movie. Thus there was no copyright infringement. The Defendants also requested that the movie script and master copy of the movie which were seized by the preliminary injunction order be returned.
The Commercial Court had accepted parts of the Plaintiff's case by declaring that she was the creator of "Bung Karno: Indonesia Merdeka" and rejected the Defendants' claims. The Defendants appealed.

The Supreme Court overturned the first instance decision completely. They found that the Defendant did not create the movie based on the Plaintiff's script. Instead, it was written by another person who worked closely with the movie director under contract. The Judges stated that the contractual dispute was a side issue under the jurisdiction of the District Courts.  The Supreme Court ordered the Plaintiff to return the script and master copy of the movie to the Defendants.
It is not entirely clear how this case could be reversed so completely. It appears there is a wider dispute between the parties and that the use of a temporary injunction was premature. The Plaintiff convinced the Commercial Court to make an order perhaps without disclosing the full nature of the dispute. This demonstrates the difficulty of a system with no duty of disclosure of the wider picture to the court. The Commercial Court would have been reluctant to overturn its own decision on the injunction, when it was the first of its kind.  Presumably now the Defendants may now seek redress for a wrongfully granted injunction under the rules.
The net result is yet more uncertainty over the future of preliminary injunctions in Indonesia.

Wednesday, March 18, 2015

Indonesia domain name changes

Image result for PANDI INdonesiaSince opening on August 17, 2014, registrations for the new Anything.id domain reached 8,500 new .id domain names.

The naming rules however have proven difficult for personal Indonesian registrants. The rules allow personal users to register domain names for names stated on their identity cards. However, many Indonesian people use nick names. Also it is nearly impossible to alter names in identity cards. It is quite normal for Indonesians to operate in society with a different name from the one on their identity card.

So from March 1st 2015, PANDI adjusted the naming rules. Now Indonesian people may register any domain name without specific reference to their identity card on a first-come-first-served basis. This runs the risk that there will be numerous people unable to use their own name. But at least PANDI will sell more domain names this way! 

Tuesday, March 17, 2015

Indonesian GI producers association established

The Indonesian Association of Geographical Indications (IAGI) was established in February 2015. It consists of all the GI members from all over Indonesia as well as a number of GI experts. It is not yet clear how it will operate, but there are currently 28 Indonesian GIs registered in Indonesia, as well as 3 foreign GIs. The latest registration was KOPI SUMATRA ARABIKA SIMALUNGUN.  Indonesia is now gathering pace in promoting GIs, given its strength in agricultural products. 

Sunday, March 15, 2015

Indonesia's Ministry of Health seeks crackdown on fake online sales

 Image result for indonesia bpomThe Indonesian Food and Drug Monitoring Agency (BPOM) announced a program to work with logistics companies and e-commerce outlets to curb the distribution of illegal products last week. BPOM head Roy Alexander Sparingga sought support from e-commerce companies and logistics /delivery companies. He cited difficulties tracing operators behind the mushrooming online sale of unlicensed food, drugs and cosmetics over the past few years.

He referred specifically the misuse of distribution registration numbers (NIEs) which come from the BPOM license issued to the genuine producer. In 2014, BPOM took action against 300 websites offering unlicensed food, drugs and cosmetics products, and hey arranged for the sites to be blocked by the Communications and Information Ministry. 

Major online retailers such as Zalora expressed support as did courier companies. Zalora has been consulting with BPOM as to how it can sell cosmetics legally.  Online population growth is expected to reach 100 million in Indonesia in 2015. 

Thursday, March 12, 2015

Image result for harco glodok

On March 5th the USTR announced its regular review of the world's notorious markets, the largest counterfeit and pirated products centres in the world. These comprise physical locations selling hard goods as well as online sites distributing pirated content. China features heavily of course (its AIC head even this week announced how important it was to stem the tide of fakes in China). But many other regions also feature.
SE Asia has over time been improving. The Philippines has excitedly announced its removal from the list. However 3 key SE Asian problems remain:
in Indonesia Harco Glodok, the consumer goods and electronics market in North Jakarta remains a key centre of counterfeit hard goods, largely imported from China.

Thailand has a number of physical areas of concern including Talad Nat on Wireless Road which is very close to the US Embassy in Bangkok.

Vietnam's zing.vn is primarily a social media site, but continues to provide access links to unauthorized music content. Years of negotiations to legitimize its content distribution have still not yielded results.

Despite the recent growth in online business in the last few years, so far SE Asia has not seen online fake sales take off in the same way as other parts of the world. Only Zing.vn so far has been named as a serious problem.