Upon mentioning ‘intellectual property’ (IP), many of you can relate it to terms such as trademark, patent and copyright. This article explains the difference in these terms to help you better understand and secure your IP rights.

TRADEMARK

1. What is a trademark and what does it protect?

• According to Trade Marks Act 1999, a trademark means ‘a mark capable of being represented graphically and is capable of distinguishing the goods or services of one person from others in the same field.’ In layman term, trademark simply means the ‘face’ of a brand or a company to distinguish it from its competitors.
• A registrable trademark can be a distinctive logo, picture, name, word, letter, number, symbol or any combination thereof to identify a specific business or a brand.
• A trademark is valid for an unlimited period of time, but it must be renewed every 10 years.

2. Why register a trademark?

• A registered trademark usually has the symbol ® next to it, giving the owner exclusive rights to the mark. Registered trademark helps prevents unauthorised use of the goods or services and any infringements can give rise to legal actions. Suffice to say, to register for a trademark, there are certain costs involved and procedures to be followed. All trademark applications in Malaysia must be made to the Intellectual Property Corporation of Malaysia (MyIPO).
• An unregistered trademark comes with a symbol ™ but an unregistered mark is not legally binding.

PATENT

1. What is a patent and what rights does a patent owner have?

• A patent is an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem. The Patents Act 1983 governs the grant and validity of patent rights in Malaysia.
• A patent protectioN lasts for a period of 20 years from the date of filing. During this period, a patent owner has the right to use the patented invention, or may license to other parties to use the invention, or sell the right of the invention to someone else who will then become the new owner of the patent.

2. What are patentable and non-patentable inventions?

• To be patentable, an invention must be:

(1) new and involves an inventive step;

(2) have industrial application;

(3) capable of being defined in terms of its technical features; and

(4) supported by an enabling description and/or necessary drawings that teach others how to make use of the invention, and disclose the best mode of doing so.

• An invention is not be patentable if it falls within any of the following categories:

(1) discoveries, scientific theories and mathematical methods;

(2) plant or animal varieties or essentially biological processes for the production of plants or animals, other than man-made living micro-organisms or microbiological processes.

(3) schemes, rules or methods of doing business, performing purely mental acts; and

(4) methods for the treatment of human or animal body by surgery or therapy, and diagnostic methods practised on the human or animal body.

COPYRIGHT

1. What is a copyright and what does it protect?

• Copyright is an exclusive legal right given to an originator to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do so. Subject to the provisions of the Copyright Act 1987, copyright are usually sought by authors, artists, choreographers, architects, and other creative professionals.
• In Malaysia, a copyright lasts during the lifetime of the creator and continues 50 years after his/her death.
• Whoever who uses copyrighted works without the consent or authorisation from the copyright owner may constitute an infringement under Copyright Act 1987.

2. How is copyright protected in Malaysia?

• In Malaysia, copyright is non-registrable and enjoys automatic protection. However, ownership of copyright can sometimes be difficult to establish. As such, it is essential to ensure proper documentation to prove ownership. Copyright owners can claim ownership by way of a Statutory Declaration or by filing a Voluntary Notification at the Intellectual Property Corporation of Malaysia (MyIPO).