MALAYSIA Law and Practice Contributed by: Tai Foong Lam and Amy Lim Yun Jin, Gan Partnership
8.7 International and Cross-Border Considerations
sible to protect shapes and packaging simultaneously as trade marks and industrial designs, the scope of protection is limited to the respective statutory provi- sions. 8.5 Copyright and Trade Marks Protection under both copyright and trade mark law is possible, provided that the logo fulfils the require- ments of a work under copyright and a mark under trade mark law. The scope of protection and enforce- ment rights is therefore limited to the respective statu- tory provisions. The copyright laws in Malaysia do not impose any limitations on the enforcement of trade mark rights and vice versa. 8.6 Enforcement and Remedies Across Multiple IP Rights Claims based on different IP rights may be brought under the same proceedings. In assessing injunctive relief, each intellectual property right will be dealt with separately. There is, however, a prohibition on double recovery in the same lawsuit if it is duplicative for the same losses, so damages and/or compensatory rem- edies are consolidated and dealt with or sometimes, depending on circumstances, apportioned accord- ingly.
In Malaysia, local courts refer to treaty obligations and conflict of laws concepts to manage cross-bor- der issues arising between national and international intellectual property systems. Subject to jurisdictional restrictions, cross-border enforcement and conflict of law issues, Malaysian courts frequently utilise local law as the governing rule of decision. Although they may be compelling, foreign rights and judgments are not legally binding and enforcement is still jurisdic- tion-specific. In reality, domestic legal proceedings and contractual agreements (such as licensing and arbitration clauses) are used to handle cross-border disputes. Courts refer to international obligations without undermining the territorial character of intel- lectual property protection.
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