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Trademark volumes in South East Asia
 
IP Komododevours data, so looked with interest at the published data on 2011trademark applications in South East Asia. Some of the data is hard to compare. For example Philippines has multi class application data, Indonesia a mix of multi and single class. So for the Philippines and to a degree Indonesia the numbers appear a little low. But some broad comparisons make for interesting reading.


Thailand has the largest foreign filings -slightly more than Malaysia. It should be pointed out that the Vietnam and Indonesia figures are estimates, based on previous years.Vietnam one would expect to see at the bottom of foreign filings, but Indonesia, the 4th largest country in the world? That's a reflection of the fact that it has not been onbusiness radar screens for very long (mistakenly - see below).

The domestic filing levels show the true market size and compare closely to GDP levels between these countries. Thailand with an active local economy is sizable. Malaysia too, but it is a smaller country with slightly lower GDP levels. The Philippines numbers are low as the figures are multi class, with Vietnam the smallest economy here, but perhaps punching above its weight in domestic filings. And Indonesia being by far the largest economy of these countries has by far the most domestic trademarks, over double its largest naighbours.

Now the interesting part. Add the two Indonesian ingredients -huge local brand focused commerce plus few foreign filings and what do you get...? A trademark squatting problem. So now we know why so many foreign brand owners end up in court trying to cancel local copies of their marks.
 
Copyright disaster for Indonesian novelist
 
Andrea Hirata is the best selling Indonesian author of Laskar Pelangi or Rainbow Troops, a hugely successul novel about island people and education. He is reportedly upset about the piracy situation in his native Indonesia and so will write his next novel in English. “I have stopped writing in Indonesian,” he said as he was presented with a World IP day award for the creativity of hisintellectual property rights. His next novel will be first published in the USA because Laskar Pelangiwaswidely copied in Indonesia.“During one book promotion event, I even signed about 2,000 copies of Laskar Pelangi before realizing that none of them was original,” he said.

IP Komodo laments the loss of creative talent which comes fundamentally from a lack government interest in serving its citizens by providing a proper infrastructure.

But further than this it reminds IP Komodo of Jerome K Jerome's 'Author's Advertisement' at the start ofhis 1890s comic masterpiece Three Men in a Boat. He mentions that a retired book pirate told him that his book had been widely copied in another country, due to a lack of copyright protection there, selling over a million copies for which Jerome earned nothing. That country was the USA.
 
PCT growth in Thailand
 
Thailand's accession to the PCT is providing the promised ease and savings for patentapplicants. Data from the Thai IPD shows a good take up from major users like US, China, Japan and Korea.
 

PCT National Application (Inbound) – started from 1 July 2010

Year

Numbers

2010

28

2011

2,149

2012 (until 24 April 2012)

1,307

Total

3,484

*Credit: TH Receiving Office/DIP

Significantly there is take up from local applicants too:

PCT International Application (Outbound) – started from 24 December 2009

Year

Numbers

2009

4

2010

49

2011

51

2012 – present

19

Total

123

Of course the numbers are small relative to inbound filings, but that's no surprise. Thailand is a larger international filer than its nearest (developmentally speaking) neighbours Philippines and Indonesia - see here.

Singapore's plan to be the regional IP centre in Asia
 
What is Singapore up to with the consultation paper issued in mid March to open up it's patent attorney profession? Singapore moved from a re-registration system to a full patent system in 1995. Since then it's been an upward trend for patent attorneys and patent holders alike as numbers of local and international patent filings had been steadily increasing and atechnically proficientpatent agency profession has grown up.

Now Singapore proposes to regulate offshore patent filing by foreign registered patent agents. In truth foreign registered patent agents who may or may not practice offshore probably should probably not be 'regulated' since activities performed in Singapore relating to another legal jurisdiction should surely be irrelevant to Sinagpore? In Hong Kongfor example many US patent attorneys file directly in the US, provided they comply with the basic requirements for having a qualification and an address for US service.

Singapore now seeks to regulate that to attract more international patent firms. It is part of a wider plan for Singapore to become a professional hub for IP in Asia, grabbing a slice of the pie that was for many years eaten by default in Hong Kong. This pie is now more like crumbling pastry, as mainlandChina IP work and IP jobs leave Hong Kong for the PRC. Hong Kong has an urgent need to revinvent itself, IP wise. Arguably this is happening with the government issuing a consultation paper on a full patent system, and two groups quibbling over the establishment of a patent professional qualification. But they are over a decade behind Singapore which now far outpaces HK in patent production.

IP Komodo observes a trend for MNCs to split legal functions in the emerging Asian markets(excluding Japan that is), between the PRC and Singapore.In the past they might have one regionalIP lawyer or even team in Hong Kong. Singapore's IP Academy quite separate from its IP office, IPOS, seeks to promote IP leadership in the city. Now thegovernment has embraced IP through policies to attractmore IP functions to create a regional centre of IP excellence for Asia in Singapore.
 
ASEAN patent cooperation
 
The ASEAN Working Group on Intellectual Property Co-operation (AWGIPC) is the ASEAN governmental team working on cooperation within the framework of the ASEAN bloc of 10 South East Asian nations. One aspect of the AWGIPC's ASEAN Intellectual Property Rights Action Plan for 2011-2015, is the ASEAN Patent Examination Co-operation (ASPEC) programme.

It began in 2009 to enable sharing of search and examination results amongst the participating ASEAN IP Offices. The goal is to reduce duplication of search and examination work Patent examiners are able to develop search criteria quickly, reduce search time and efficiency. Patentinformation databases will be provided too.


Until now language was a barrier to sharing search and examination work. However under a recent review it has been agreed that all documents submitted for the purpose of the ASPEC programme at any participating ASEAN IP Office will be in English. The ASPEC Request form has also been revised.

Unfortunately as with the Patent prosecution highwayin ASEAN - see here -not every country has joined, and soonly a handful of ASEAN states are yet using the cooperation program.

Vietnam coffee GI problems spill over into trademarks
 
There is already a dispute over a geographical indication (GI) for coffee, Buot Ma Thuot reported here – between Vietnam and a Chinese trademark registrant.

Now the issue is made more complicated by a new trademark conflict. Minh An Cooperative, a Vietnamese coffee producer reported to be in financial difficulties, is seeking to sell some of its trademarks (protected in Vietnam, China and the USA) to a Chinese coffee company.

But the trademarks, Coffee Duc Lap Dakmil and Coffee Duc Lac Minh An use geographic names, the first one referring to Dak Mil district and the other to Duc Lac province, both known for coffee production. The local government of Duc Lac is seeking to build up a GI under the Duc Lac name. The sale of the mark would dilute the attractiveness of a potential GI.

But worst of all the buyer is Guangzhou Buon Ma Thuot Coffee, the very same entity which registered the Vietnamese GI Buot Ma Thuot as a trademark - see the report mentioned above.

One could argue that the NOIP should not have accepted Minh An Cooperative’s trademarks for registration. Then again GIs are a new creature in Vietnam whereas the trademarks were registered some while back. It’s a rather more compressed form of the new world/old world TM vs GI conflict between the US and Europe. But now that the trademarks are registered, the NOIP and Vietnam is in difficulties. How can it take away trademark rights, which Minh An Cooperative need to sell, to allow the protection of new GIs? It could ask the WIPO and WTO for help, but then again, they don't have the answer either.
 
World IP day today 26th April
 
WIPO initiated this event in 1970, which involves various promotions held around the world. There is even a Facebook page these days: http://www.facebook.com/worldipday

In Hanoi, Vietnam,the US Embassy, the Motion Picture Association (MPA) and Megastar cinemas have teamed up to celebrate World IP Day 2012 by organizing a screening of the latest Hollywood movie, Battleship.

In Philippines there are to be various events especially focussed on eductaion and kicking off with the opening of the WIPO Regional Workshop on Copyright Documentation Systems on April 26-27, 2010 at Crowne Plaza Galleria Manila, Ortigas Center, Pasig City, Manila.

In Indonesia every year the President even gets involved hosting an event at the Merdeka Palace, although this year his other committments have led him to postpone the event until 8th May.

But the Bangkok Post's opinion piece today here on World IP day condemns the lack of robust activity from the government to protect Thai innovation in an outburst running contrary to the general celebration in the industry, and suggesting the need for more urgency to protect creative industries.
 
Vietnamese Copyright's Got Talent!

A finalist in the Vietnam’s Got Talent TV show, Kieu Van Thanh who uses a water pipe as a musical instrument, is now being accused of violating copyright. Another artist, Mai Dinh Toi whose performances on self-made instruments have been recognized by the Vietnamese Book ofRecords Center, claims ownership in this work. Thanh said that he has been creating musical instruments with everyday objects such as water pipes and tea boxes for a while.

The Head of the National Office of Intellectual Property of Vietnam (NOIP) when interviewed in the press indicated that this copyright infringement case may be complex as the plaintiff has not made any copyright registration for his creation.

IP Komodo muses that game show formats are one thing (and arguably not a copyrightable anyway), but an individual performance might be capable of protection, or at least the expression of it.But that was not reproduced here. Or is it a claim for copyright in the design of the musical instrument?  IP Komodo suspects the claim is weak.

In any event copyright registration is not a requirement for protection as every IP expert knows and the NOIP spokesman was focused in on entirely the wrong issue. Which leads IP Komodo to worry that the NOIP doesn't have much talent when it comes to assessing copyright protection.
 
Japan's patent portfolio growth

Some patent data from Indonesia shows a trend:

2009

2010

2011

total patents
filed

4829

5830

6130

1

US

1059

1255

1211

2

JP

862

1115

1202

3

ID

669

756

778

4

DE

347

449

541

5

CH

276

303

342


Overall patent filings in Indonesiaare on the rise and in general the major filers are consistently rising. But Germany and Japan's patents jumped more than other major countries over this period. Japan's jump is consistent with WIPO data, which saw Japan's global patent filings rise fastin recent years (21% last year alone). Germany too, but not at the high rate their filings increased in Indonesia.

Japan's tech companiesclearly have not been idle these last few recession years.A recent survey by the Japan Bank of International Cooperation showed Indonesia moving from 6th to 5th most important investment destination for Japanese companies. Japanese attorneys whom IP Komodo quizzed about this at the FICPI conference in Melbourne confirmedthese suspicions.

So is Japan busy building up an ever larger patent portfolio in major Asianemerging markets while the US and Europe slumber through their recession?
 
Vietnam - enforcing against websites
 
IP Komodo has reported on how the Vietnamese authorities are actively taking enforcement against internet infringements. The Hanoi Market Management Bureau last week fined an internetcompany called VIC International Communications for trading in fake goods.

VIC is the owner of the online household goods website www.groupmua.vn a portal which offers coupons and sells some goods directly. Apparently the website had been selling counterfeit MAGIC BULLET food blenders. MAGIC BULLET is a US brand and seizures of its products were made.

IP Komodo notes there are still many Magic Bullet products on sale on the portal, presumably now only genuine....?

This is not really a true internet case however since they really were selling fake goods, rather that the goods merely passing through an ISP or portal.
Software protection problems in Indonesia
 
Software enforcement is one of the most contentious areas of IP protection. The Jakarta Globe last weekend published a report on how Indonesian software developers are hampered by poor IP protection and a weak venture capital infrastructure leading to a lack of investment and opportunity to develop the localindustry.

Meanwhile a BSA raid on a company called Multisari Langgengin September 2011 allegedly for unlicensed commercial software use, has backfired. Thecompany is suing the software association's offices in Singapore and Washington DCin the Jakarta courts for improper execution of the raid, claiming the court warrant documentation was defective. The case also claims the association is not properly able to bring an infringement case for its members (something which could have significance for other IP organisations), and seeks very substantial damages.

Similar problems are faced in other South East Asian countries - see some previous IP Komodo reports on software issues here. Neither local or the international software houses are having an easy time protecting their copyrights.
 
An impressive IP transaction in Thailand
 
In contrast to the trademark woes in the tourism services sector in Lombok here and Singapore here comes a positive tale of IP value in this industry from Thailand. A major US private equity house called Pegasus Capital Advisors is to buy Thailand's Six Senses Resorts & Spas, a chain of 10 super-luxury resorts and 28 spas in in 20 countries operated by Six Senses.
 
What interests IP Komodo is that the transaction is all about intangible assets. The acquisition was of the intellectual property of the business, chiefly the Six Senses and Evason brands along with the resort and spa management contracts. No pyhsical assets were sold. There is a lesson here for Asian businesses in the importance of investing in intellectual property rights and the value that can be created.
 
Counterfeit Medicines in Indonesia
 
A series of seminars around Indonesia this week highlight the problem of counterfeit medicines. The chairwoman of the Indonesian Anti-Counterfeiting Society (MIAP) along with a number of US government officials are widely quoted in the newspapers on Thursday. They explainhow high quality fake packaging fools consumers. Viagra and Cialis are the most widely prevalent fakes, but many other fakes are seen too. Fake medicines are sold from black market traders, or from known locations such as Pramuka market. Yet the authorities do not crack down enough on the issue seeing it as a commercial trademark issue, rather than focusing on the potential harm to consumers. The police and the courts need to improve. In one video shown at the seminar, people were seen hunting through hospital garbage for packaging including vials for refilling. The Ministry of Health cited a number of genericproducts which are as equally counterfeited as the branded ones.

IP Komodo concurs; the police are almost totallyineffective at IP enforcement right now and hardly any cases make it to prosecution in Indonesia. The Ministry of Health inspectors have an uphill battle bringing cases.
 
TPP negotiations and Vietnam's IP system
 
The US government's USTR published a report last week on the TPP, the Trans Pacific Trade Partnership, which the US is negotiating with various Asia Pacific nations, intended to be a closer economic arrangement than APEC.  The TPP is contentious because of the high level of IP protection members are required to put in place.  However several ASEAN countries have joined, such as Singapore or are negotiating such as Brunei, Vietnam and Malaysia.
 
Last week's report highlights IP protection in the TPP countries.  Whilst developed nations like Singapore have only minor steps to bring their rules up to par, Malaysia and especially Vietnam have a long way to go.
 
The comments from the USG on Vietnam are:
 
  • enforcement efforts have not kept pace with rising levels of IPR infringement and piracy.  Not surprising in the context of Vietnam's economic boom, which inevitably outpaces the legal system, observes IP Komodo.
  • administrative enforcement actions and penalties, the most commonly used means of enforcing IPR in Vietnam, have not served as a sufficient deterrent.  IP Komodo thinks that the same can be said of China - administrative actions are just not taken as seriously as criminal and civil cases.  Yet they are a TRIPS-acceptable system.
  • Vietnam is praised for actions to enforce IPR protections on the Internet, including by issuing warning letters and by meeting with Internet service providers (ISPs) in response to rights holders' requests to address infringing content.  It's such early days in the growth of the internet in Vietnam that IP Komodo expects this to become a future problem area.
  • Strengthening of the criminal and administrative penalties is under way, provided the implementing legislation follows, which is a common delay in Vietnam.

IP Komodo worries that Vietnam is not as developed as the other nations and will struggle to quickly deliver an IPR system to the level the TPP requires.

Indonesia Copyright registration leads to court
 
IP Komodo has in the past expressed his disapproval of copyright recordal systems, because they can be too easily abused to distort the truth of subsistence and ownership and so prejudice the real creators.
 
An Indonesian case illustrates this.  The Central Jakarta Commercial Court decided a copyright revocation dispute on 2 March 2012.  The defendant Indra Surya claimed to own a work entitled "Investasi Cerdas ala Rencana Emas (Intelligent Gold Investment Plan)".  The paper explained a gold trading strategy and was published on the gold trading website antam.com.  Surya had registered his paper at a copyright at the Copyright section at the Intellectual Property Office.  Copyright registration is voluntary in Indonesia and unexamined.
 
It turned out that the paper written by Indra Surya copied most of its content from an e-book on gold trading strategies written by the plaintiff, Arie Indra Manurung.  He had published his work on another gold trading website goldgram.co.id.  Indeed he also registered his copyright in 2008.
 
In its decision, the court stated that Surya registered his work in bad faith and cancelled the copyright registration.  The evidence indicated that the defendant was unable to prove the originality of his article and the court concluded had copied specific parts of the the plaintiff's Goldgram book.
 
What this shows is that recordal of copyrights with no or little examination gives a copycat a huge leg up against others.  He may undertake enforcement, and use his government chopped certificate to make claims which are untrue.  The real owner later has to go through the expense time and risk of court litigation to prove his ownership.
 
Lombok hotel trademark disputes
 
Six Continents Hotels Inc., the US hotel operator which owns the trademark HOLIDAY INN sought to cancel the trademark HOLIDAY RESORTS LOMBOK owned by PT Lombok Seaside Cottage.  Having failed at first instance they appealed to the Supreme Court, but on March 12, 2012 the Supreme Court refused the appeal.  The reason for failure of the case was, according to the court a lack of similarity between the two marks.  The reason for failure of the case was, according to the court a lack of similarity between the two marks.
 
IP Komodo has in fact slithered past this hotel and noted the sign before.  There are no details of the precise marks owned by Six Continents in Indonesia, but the attached one on Google is probably the closest.  However Holiday Inn as a brand is used in many formats so possibly this is not registered.
 
Of course there is another question whether anyone should be able to register a mark HOLIDAY RESORT LOMBOK in a tourist destination like Indonesia!
 
Monday 2 April 2012
 
Indonesia folding door patent dispute becomes criminal
 
A Supreme Court patent revocation decision highlights one of the dangers of misuse of the criminal patent enforcement system - for more information on that see here.

Jusman Husen filed various designs and simple patents in 2007 and 2008 for metal sliding gates used as security doors (see photo of the types of doors in question). Two competitors filed revocation actions and successfully revoked 6 of his designs in an earlier case in 2008. But competition turned to active dislike and attack.

In 2009 Husen filed criminal complaints against the two competitors. There followed a raid by the police based on his two patents. So the raided defendants applied to revoke the patents on the grounds that the prior art disclosed the inventions. They had both been in business for 15 years as had many other people selling similar products. They could show this from catalogues.

The Jakarta Commercial Court cancelled the 2 simple patents and stated that Husen was acting in bad faith. Husen then appealed unsuccessfully, twice to the Supreme Court. Finally in March 2012, the Supreme Court decided there was no error in the first Supreme Court panel's decision and stated the invention was not novel.

Indonesia's adoption of a criminal system for patent enforcement has risks, as these businessmen found out. It is increasingly common to use the criminal justice system as club to batter competitors who are not necessarily in the wrong.
 
Friday, March 30, 2012
 
 
Philippines - IPO mediation of disputes
 
The Philippines Bureau of Legal Affairs hears all inter partes IP cases, from oppositions to infringement disputes. In each case it sets 3 hearings to assess whether the case can be resolved by mediation. The IPO reported that it achieved its 100th successful mediation the other day.

Whether cases can settle through mediation depends on the willingness of the parties to negotiate/come to an agreement/explore possibilities as well as the skill of the mediator. If parties take a hard line stance as is common in conflicts, the mediation won't succeed. However some are clearly coming to a resolution, which can shorten disputes and reduce costs. IP Komodo always likes to look at alternatives to lengthy contentious proceedings in the Philippines.
 
Wednesday, March 28, 2012
 
 
Vietnam 's domestic software industry and barriers to enforcement
 
Its a trite view that emerging markets need stronger domestic industries to own and rely on IP before the legal systems will feel pressure to provide greater IP protection. VietnamNet, a news service reports on the lack of government efforts to protect the domestic Vietnamese software industry, instead paying more attention to foreign software. The Ministry of Information and Communication cites Vietnam Copyright Agency raids on PC sellers for offering PCs preloaded with pirated foreign software. They say the embryonic local software industry is not being helped enough.

So the Ministry of Information asked local industry associations and firms to report their software and IP to enable more effective enforcement. This includes software copyright registrations which the Agency records. But the local industry complains that such registrations are required. IP Komodo observes that authorities in some Asian countries still sometimes insist on registration of copyright. Maybe not legally required, it is often requested as a practical requirement for authorities to act. (The same problem arises in some countries with packaging graphics and jewellery designs which are protected by copyright).

Vietnam's IT industry now has the same view, that barriers to enforcement need to be reduced and administrative authorities need to find ways to enforce unregistered without requiring registrations.
 
Sunday, March 25, 2012
 
 
Terms of compulsory licenses granted
 
Further to the recent decision in India and the post here IP Komodo thought it helpful to compare known compulsory license terms (known from the media reports at least). Any additional information is welcome, to update, add to or correct this.

CountryDatecompoundPatenteeRoyaltyPurposeTerm
Indonesia 5.10.04 lamivudine GSK 0.5% of the net sales price for government use Patent expiry 2011
Indonesia 5.10.04 nevirapine Boehringer Ingelheim 0.5% of the net sales price for government use Patent expiry 2012
Thailand 25.1.07 efavirenz Merck 0.5% of the original cost of the drug public non-commercial use for importation and local production
Thailand 25.1.07 opinavir/ritonavir Abbott public non-commercial use for importation and local production
Thailand 25.1.07 clopidogrelc Sanofi-Aventis & Bristol-Myers Squibb. public non-commercial use for importation and local production
India 9.3.12 sorafenib Bayer 6% of net sales (up to max. price of 8880 Rps/pack) Manufacture by NATCO only in India. Patent expiry
 
Monday, March 19, 2012
 
 
 
Social media and IP in Indonesia
 
"A Nation smitten by Social Media" wrote the FT last week about Indonesia. Indonesia is the 3rd largest Facebook country in the world (India knocked only it from 2nd place in 2011). A film with a plot revolving around Twitter was released. And Rovio held the global launch of its Angry Birds Facebook site in Jakarta.

Indonesia embraced Blackberrys very early and its now one of their major markets. The lack of PC penetration is negated by the prevalence of smartphones aorund Indonesia. So business and consumers are leapfrogging the world of search engines in favour of mobile. Social media is rapidly becoming the primary marketing conduit to many consumers. Virtual currencies like the one offered by Mig33 from Singapore enable online transactions.

As a result there is a social media gold rush on. IP holders are staking claims through Twitter accounts, Facebook pages and by issuing apps. Brand licensing, software ownership and proper brand use guidelines are vital to IP security. Indonesia does not have a robust IP system so careful IP planning is required.
 
Tuesday, March 20, 2012
 
 
 
Bali's Ku De Ta fights with Singapore trademark pirates
 
It is more common to find Singaporean businesses complaining about trademark piracy in Indonesia. But Bali's hippest beach club, bar and restaurant Ku De Ta (left) was annoyed to find a replica Ku De Ta open atop the prestigious Marina Bay Sands Integrated Resort in Singapore

So the Indonesian Ku De Ta owners brought cases in Singapore based on their well known mark, against the Singapore registered trademark owner, Nine Squares (an Australian Company) who licensed use the mark to one Chris Au who in turn assigned this right to use to the Defendant operator, Ku De Ta SG Pte Ltd.

The cases are for invalidation of the mark, as well as an injunction to restrain use. It involves both the restaurant / club in the Marina Bay Sands resort and it's website http://www.kudeta.com.sg/. The case is being contested, because the operators and the registrant differ. At least one of the parties is suspected to have a connection to the Bali business. Since separate invalidation proceedings from the infringement case have been brought, the defendant in the litigation sought to have the injunction case struck out with a preliminary application, although unsuccessfully. Presumably too much has been invested with such a high profile operation in Singapore's premier resort for the defendant to walk away.


The Bali business which is widely known throughout the Asian beach and club scene, appears to have a strong case given the common law protections for reputation in Singapore. But the defendants may have too much at stake to give up quickly. As one Bali hotelier put it to IP Komodo, if only they had registered their marks properly in the first place around the region in which they are so well known, the trouble, legal costs and wasted energy of litigation against a trademark copycat might have been avoided.
 
Wednesday, March 14, 2012
 
 
 
Bali's Ku De Ta fights with Singapore trademark pirates
 
It is more common to find Singaporean businesses complaining about trademark piracy in Indonesia. But Bali's hippest beach club, bar and restaurant Ku De Ta (left) was annoyed to find a replica Ku De Ta open atop the prestigious Marina Bay Sands Integrated Resort in Singapore

So the Indonesian Ku De Ta owners brought cases in Singapore based on their well known mark, against the Singapore registered trademark owner, Nine Squares (an Australian Company) who licensed use the mark to one Chris Au who in turn assigned this right to use to the Defendant operator, Ku De Ta SG Pte Ltd.

The cases are for invalidation of the mark, as well as an injunction to restrain use. It involves both the restaurant / club in the Marina Bay Sands resort and it's website http://www.kudeta.com.sg/. The case is being contested, because the operators and the registrant differ. At least one of the parties is suspected to have a connection to the Bali business. Since separate invalidation proceedings from the infringement case have been brought, the defendant in the litigation sought to have the injunction case struck out with a preliminary application, although unsuccessfully. Presumably too much has been invested with such a high profile operation in Singapore's premier resort for the defendant to walk away.


The Bali business which is widely known throughout the Asian beach and club scene, appears to have a strong case given the common law protections for reputation in Singapore. But the defendants may have too much at stake to give up quickly. As one Bali hotelier put it to IP Komodo, if only they had registered their marks properly in the first place around the region in which they are so well known, the trouble, legal costs and wasted energy of litigation against a trademark copycat might have been avoided.
 
Wednesday, March 14, 2012
 
 
 
India and pharma compulsory licensing
 
IP Komodo has been following the Indian compulsory licensing sagas because of its possible impact in other countries in Asia. The decision in Natco and Bayer came out on 9th March.

The court granted Natco a compulsory license, the first of its kind in India, (and the second in Asia after Thailand). It focused on 4 areas in deciding whether or not Bayer had made the drug reasonably available:

  1. Availability. The court sided with Natco, that sales by Bayer were insufficient to supply the Indian market.
  2. The price Bayer supplied at was too high for the market.
  3. Bayer failed to work their patent through their small imports and Bayer should be manufacturing its Nexavar in India.
  4. No adjournment was justified to enable Bayer to make more efforts to supply the market.


The court accepted nearly all Natco’s arguments unsurprisingly, given India’s tendency to take a political perspective on access to medicine over patent monopolies. The court pretty much asserted it knew better than Bayer how to make and sell pharma products!


As the Bayer product was not reasonably available a compulsory license was granted. It was priced at 8880 Rps (NATCO’s price was accepted, a fraction of Bayer’s 280,000 Rps sale price), with a 6% royalty.

What are the consequences of this decision outside India ? Other countries are watching this, esp. in SE Asia such as Thailand and Philippines. The requirement to manufacture potentially renders many drugs subject to compulsory licensing. The assertion that the court understands pharma manufacturing and pricing best is of some concern. No-one really expected Bayer to win, but the court made little attempt to be balanced. A position somewhere between Natco and Bayer would probably still have resulted in the grant of the license based on my reading.
 
Monday, March 12, 2012
 
 
 
ASEAN and international IP cooperation
 
IP Komodo likes the IP industry because of its emphasis on international cooperation. Here are a few upcoming events relating to SE Asia.


  • The ASEAN IP Association Annual General Meeting & Conference is on 16 to 18 March 2012 at the Ayodya Resort, Bali, Indonesia. Its theme is Law Enforcement on Intellectual Property Rights. Click here for details.
  • On 22 February, OHIM received a visit from the Department of Intellectual Property (DIP) of Thailand. The visit involved an exchange of views on various matters, looking at areas for bilateral cooperation discussed and reviewing the the ECAP III with ASEAN.
  • On April 18-21 the USPTO is organising an ASEAN-USPTO Workshop on Enforcement Against the Trade in Counterfeit Hard Goods, in Jakarta, involving officials from the whole region.
  • In April a group from the Indonesian IP office travels to the UK to meet with various collecting societies under the auspices of the British Copyright Council, so the Indonesian government can work out how to establish its own copyright royalty collecting societies.
 
Sunday, March 11, 2012
 
 
 
Thailand to get first S E Asian EU GI
 
According to the Nation newspaper, Thai HOM MALI jasmine rice should receive Geographical Indication (GI) protection from the European Union in 2012. Approval from Brussels in coming months will make it the first South East Asian product to get a GI certification from the EU. There were initial objections as to how strictly it was produced and packed in the specific area of NE Thailand, but the applicant overcame these. There is some excitement in Thailand over this because of the significance of GI protection for exclusivity and higher prices. Thailand has been the most active country in his region in obtaining and promoting GIs.
 
Thursday, March 8, 2012
 
 
 
SE Asia - another perspective on relative IP protection
 
Hernando de Soto is an economist from Peru, well known for his economic theories on how countries can unlock value in their economies by freeing up assets for their population. His main theory is that the legalisation of land ownership and use enables mortgages to be obtained and capital released for use in the economy. Now an organisation affiliated with him, the Property Rights Alliance has produced an index of countries based on strenth of property rights. But most interesting for the IP industry, it has factored in IPR protection. The full report is here. Again the theory is that developing countries are weak at identifying and protecting priovate property, which means large swathes of assets are unavailable for expoitation and the economy artifically restrained.

IP Komodo, ever keen to see how countries are viewed in terms of IPR protection took a look at the ASEAN countries in the report which feature as follows in the list of 128 market surveyed, ranked in order of IPR protection:

4 Singapore
40 Malaysia
(51 India)
75 Philippines
86 Thailand
98 Indonesia
108 Vietnam
(China is not included)

You could argue a little about the placement of the countries but not a lot. Based on IP Komodo's experience around the region, he is impressed by the accuracy of the research.

It also raises the wider question, if ASEAN countries were better at IP protection, would their economies develop faster and more efficiently as Mr De Soto has long suggested is the case with real property?
 
Monday, March 5, 2012
 
 
 
The Patent Prosecution Highway in ASEAN
 
The Patent Prosecution Highway (PPH) is a system to speed up examination, by allowing patent examiners in one country to rely on the examination conducted in another Patent Office. Several bilateral/multilateral agreements have linked some 24 patent offices since 2009, e.g. USPTO, EPO, various EU national offices, JPO, KIPO, China’s SIPO.

The way it works is that an applicant can request PPH handling in a second patent office where it has had a corresponding examination in a first office (provided the two offices have a PPH agreement in place). This fast tracks the examination, because the second office can rely on the examination by the first office, removing their need to examine that issue. The number of office actions and pendency are shown to reduce (so the US data shows).

Two South East Asian nations have signed up so far.

Singapore has signed up to agreements with US and Japan. However in Singapore IP Komodo understands from his friend Mike McLaughlin that there is already a modified examination system which enables accelerated prosecution to allow a Singapore patent on the basis of a grant in select other corresponding jurisdictions, including the US and Japan. Besides that IPOS are very efficient and can usually process patents quickly on request. So the PPH may not add much for inbound work in Singapore. But Singaporeans do file more than 1000 US patents a year so for outbound work, Singaporeans may find a great benefit from the PPH, when they file outside.

In February the Philippines signed on to the PPH system through an agreement with the Japan Patent Office. It plans to launch on March 12th. In Philippines pendency is currently 3 to 4 years which is not too bad, but examination can be expedited if applicants volunteer to conform the Philippines application to corresponding US, EPO, Japan patents. So it is not clear how the PPH will improve examination for inbound work yet.

As for elsewhere, well some of the slower SE Asian countries like Indonesia really could us the PPH to speed up examination and reduce duplicated costs on work already done elsewhere.
 
Thursday, March 1, 2012
 
 
A rare civil copyight litigation case in Vietnam
 
Tri Viet-First News Company a Vietnamese publisher who owns and licenses a number of titles for publication in Vietnam, has sued the Australian International Language School and Viet Nam Australia Society English Centre in the Ho Chi Minh City Peoples' Court (left) for illegal copyright infringement over 11 English-language titles and CDs. The accusation is that the two foreign language centres copied thousands of course books, materials and CDs. The copies even bore the First News logo, its address and the names of the publishers on their copies. Warning notices last year had apparently been ignored so the company sued for damages VND380 million (US$18,100).

IP civil litigation is still rare in Vietnam. How the court deals with evidence, the damages calculation and the injunction will be of great interest to IP holders and IP attorneys.
 
Tuesday, February 28, 2012
 
 
Indonesia KOPITIAM dispute - trademark or generic term
 
Many common words can attain trademark status if they acquire a secondary meaning denoting origin from a particular source. In South East Asian countries Kopitiam is a generic word meaning a Chinese coffee shop. It comes from the Peranakan Chinese overseas Chinese who migrated to Singapore, Malaysia and Indonesia. Its origins are the bahasa word for coffee, kopi and the Chinese hokkien word tiam, for shop or stall. They can be found across the region - see picture.

One Indonesian businessman, Abdul Soelystio owns a Jakarta-based “Kopitiam” shop and has sought to register the name as his own brand in 1996. He then filed a lawsuit against a Medan-based business called “Kok Tong Kopitiam” for trying to register a mark including kopitiam. He won in the Medan District Court. Paimin Halim, the owner of “Kok Tong Kopitiam”, appealed to the Supreme Court last year but lost. Now, Abdul Soelystio has taken out national advertisements to warn other restaurant owners to immediately drop kopitiam from their names.

One Indonesian businessman, Abdul Soelystio owns a Jakarta-based “Kopitiam” shop and has sought to register the name as his own brand in 1996. He then filed a lawsuit against a Medan-based business called “Kok Tong Kopitiam” for trying to register a mark including kopitiam. He won in the Medan District Court. Paimin Halim, the owner of “Kok Tong Kopitiam”, appealed to the Supreme Court last year but lost. Now, Abdul Soelystio has taken out national advertisements to warn other restaurant owners to immediately drop kopitiam from their names.

There is even a Kopitiam Association and its chairman Mulyadi Praminta has said the court rulings are ridiculous. So has Bondan Winarno, the owner of the “Kopitiam Oey” chain. In Singapore, the name is generic.

The problem in this case stems from a problematic District Court decision in Medan; in Indonesia it is often hard to raise defences, because of a bifurcated system. The defendant needed to file a cancellation action to revoke the mark as generic. Maybe now other major business owners or the association should do so.
 
Monday, February 27, 2012
 
 
The US Special 301 review
 
February sees a rush of petitions to the USTR as part of the annual Special 301 review of US trading partners' IPR protection regimes. The early part of the month sees companies and associations filing their petitions, setting out their views on IPR protection in various countries. Then, later in the month governments of countries in question get to file theirs if they choose.

So the Philippines put in a petition seeking removal from the Watch List this year, citing its government’s concerted efforts at protecting IP rights. They pointed to several activities including a number of training seminars, workshops and summits held to focus on IPR protection. They referred to an ongoing enforcement initiative which led to increased fake product seizures.

In early May the USTR's report will help understand the effect of these efforts, whether they have translated into real changes on the ground. Will Philippines Customs still be largely ineffective at stopping fakes? Will the new rules of procedure speed up criminal trials. Will the authorities conduct raids more quickly and effectively? These are some of the questions raised.

The USTR's Special 301 review causes much anger because it seems to be a stick, a high and mighty complaint about others' imperfections. But if governments do make efforts in consequence as the Philippines is doing then perhaps it does achieve its goals.
 
Saturday, February 25, 2012
 
 
Indonesia and Thailand - numbers of civil IP trials
 
IP Komodo always likes to know how many civil IP cases there are in the courts as it indicates whether businesses will litigate on IP so indcating market value.

A report in Bisnis Indonesia about the Commercial Court sheds light on the number of IPR civil trials. This data is not published by the Commercial Court. In 2010 there were 89 cases recorded at the Central Jakarta Commercial Court, a few more that the 86 2009 cases. That is pretty consistent with previous years IP Komodo recalls. The second city of Surabaya has a Commercial Court too but it only hears a few IP cases a year. Trademark cases still make up the largest part of the Jakarta docket, with 71 cases being trademark cancellation or non use deletion cases. There were 8 copyright cases, 8 industrial design cases and 2 patent cases.

Meanwhile Thailand despite being a smaller country has its IP/IT court, which in 2011 heard 260 civil IP trials. That is a ris eon the 225 in 2010. 155 cases involved trademarks, of which 59 were infringement cases. There were 52 patent cases of which 16 were infringement. The remainder were copyright, trade secret and IP license cases. Apart from the court, which is highly efficient so dispenses high quality justice worth paying for, there is more hi tech manufacturing in Thailand over which disputes do arise.
 
Thursday, February 23, 2012
 
 
Thai Customs duties on IP royalties
 
A recent Nation newspaper article about Thai customs duty treatment of royalties shows how messy this IP related tariff area is. It typically arises in the case of licensed IPR within products. In Indonesia a dispute between Customs and the film industry arose last year, reported here. The issue is when a (typically licensed)product contains IP, such as a trademark appearing on the product, whether royalties are therefore required to be paid to the IP owner; if they are then the dutiable value of the goods is increased and higher duties paid by the importer. World Customs Organisation policy is unclear and so many countries struggle with the issue.

A 2011 Thai Supreme Court case dealt with the matter. A US IP holder licensed a manufacturer and the trademarked goods were imported into Thailand. The Court decided that third party royalties did not need to be added to the Customs value of the imported goods in that case. They looked at various factors including the level of control of the IPR holder over the 3rd party manufacturer. The Supreme Court decided that the circumstances were similar to those in a recent WCO Advisory Opinion, as the licence holder had no direct control over the maker of the goods, and the sales contract had no specific obligation for the Thai importer to pay royalties. It was not a condition of sale of the goods.

But in many cases Thai Customs does determine that royalties are dutiable. Some examples would be if the IP owner controls the manufacturer and can enforce payment of royalties, or where the licensee is obliged to pay a specific royalty.

At present EU and US rules along with WCO guidelines provide examples of when royalties are a condition of sale so become a dutiable addition to the value of the imported product. But at least in Thailand now, importers have a court case to back them up, when Thai customs are insisting on an automatic inclusion of royalties. Other court challenges to Customs decisions may follow.
 
Monday, February 20, 2012
 
 
Indonesia Product Registrations
 
Product registrations or marketing approvals are required at Indonesia's Department of Food and Drugs (BPOM) for various products from medicines to personal care to foods. The rules on registration vary, some product applications are reviewed, such as pharma products, others like personal care products are just deposited information. There have long been conflicts between IP registrations specifically patents and trademarks, and product registrations, such as for patented medicines or branded products. It is also the case that officials sometimes use the power they have to grant such registrations to elicit unofficial fees.

One of the ways to tackle the problem of corruption when granting official approvals is to use software to take away the decision making power from the officials. A software driven process for applications like product registrations/marketing approvals is such a solution. Customs implemented such a system to reduce delays and corruption when approving imports. Now BPOM have launched a similar system, initially for certain food products, the vast majority of which need only limited review. An online application for marketing approval is made, reviewed and processed online and then granted. Applicants can also submit far more applications online than they can do physically and they no longer need to send someone to the BPOM office.
 
Saturday, February 18, 2012
 
 
Copyright dispute over film outfit
 
Echos of the Star Wars Stormtrooper helmet dispute (UK judgment here) are being heard in the Philippines. Designer and costume artist Lee Roy New has asked the makers of a recent blockbuster Filipino movie to pay him P10 million in damages for violating his copyright in the costume worn by the main villain “Satana”, an evil fairy portrayed by actress Bing Loyzaga in the film Enteng.

New was even was acknowledged in the movie’s closing credits and his lawyers obtained admissions from members of the production team, as well as materials naming New as the source of the costume.

As we know from the Star Wars cases, copyright in sculptures is not always easy to apply to costumes. But the Philippines IP Code does protect scuptures as well as applied art, so the case seems strong.
 
Saturday, February 11, 2012
 
 
Vietnam copyright and music
 
An interesting investment in Vietnam sheds light on the local music industry. CyberAgent Asia Internet Fund, which specializes in South East Asian investments is investing in Vietnam’s biggest Internet music media company, NhacCuaTui.com. NCT has deals with Universal and Sony to distribute their music in Vietnam as well as many local artists. It offers downloads supported by advertising, and the new investment will seek to monetize its audience's use of the site in new ways.

However the Vietnamese music industry struggles to make money. One reason is extensive piracy of all forms of media in Vietnam. Another is weak business models. Most people in the industry are part timers, holding down other jobs to earn a living. Entertainment venues there do not pay royalties. Many musicians give away their CDs at gigs since there is a poor retail market. Two are two collecting societies, the Vietnam Center for Protection of Music Copyright (VCPMC) that collects music copyright royalties and the Recording Industry Association of Vietnam (RIAV) that collects related rights royalties such as sound recordings and broadcasts.

IP Komodo finds it ironic, given the complete reverse elsewhere in the world, that the internet might be the trigger for musicians to be more financially appreciated in Vietnam.
 
Friday, February 10, 2012
 
 
Nokia sued in Thailand
 
A Thai software company called Globetech Ltd, a subsidiary of Thai IT conglomerate CDG Group has filed a case at the IP & IT Court in Bangkok against 2 companies, Nokia and Navteq.

The case is a copyright claim based on misuse of digital map data owned by Globetech. The claim is for damages of 540 million Thai Baht, around 17 million USD. The Plaintiff claims that Nokia's Ovi internet smartphone system incorporates the map data. Globetech has been mapping Thailand for decades and sells a variety of online and paper maps. Navteq was acquired by Nokia and provides the map software for Ovi.

Globetech initially issued a warning letter and there were some negotiations, but these failed to reach a resolution so Globetech sued.

IP Komodo understands IP/IT court trials take up to 2 years.
 
Tuesday, February 7, 2012
 
 
Indonesia’s missing Customs regulation
 
Under the TRIPS agreement article 51 et seq, WTO members were to put in place an IP border protection system to seize and detain imported counterfeit goods. Indonesia’s 1996 Customs law did contain provisions relating to seizure of imported fakes, but specified that a government regulation would contain more details. As a result, Customs could not actually make seizures.

Occasional calls would be received from Jakarta Cengkareng airport about small consignments, but these would typically be too small to be of any interest. The World Customs Organization arranged training for Customs in 2001. Still no regulation appeared. Sporadic lobbying, and US Special 301 complaints got nowhere. Meanwhile fake imports of electronics, car parts etc mainly from China grew.

In 2006 the Customs law was revised, and the provisions on IP border protection maintained, still specified to be subject to implementing regulations. IP holders and IP consultants had all but given up hope. After all, around ASEAN, Customs was not exactly a roaring IP success. Malaysia and to a lesser degree Thailand had something going, but Philippines and Vietnam’s IP border protection systems barely operate. And with the China ASEAN free trade agreement starting in 2010 there was talk of customs IP border protection being a barrier to imports from China. Notwithstanding that by now most fakes were imported from China.

IP Komodo was surprised then to hear, 15 years after first announcement that a team would be put together to draft the customs regulation in 2012. He hopes it doesn’t take them another 15 years.
 
Monday, February 6, 2012
 
 
Civil and criminal patent enforcement
 
Patent enforcement in SE Asia's emerging markets is still a rarity but cases are becoming more frequent.

Thailand's IP/IT court has seen quite a few civil patent cases in recent years. IP Komodo has heard it said that given that it is one of the most sophisticated courts in the region it is a rare place to test patent cases out while avoiding the costs of sophisticated jurisdictions. And IP Komodo knows a clever litigant who filed in Singapore, to obtain the discovery then quickly went to trial in Thailand with that information to seek a judgment. As Thailand has a lot of local technology manufacturing some plaintiffs see it as a good place to block competitors too. Most actions for patent infringement are civil – there are around 30-40 per year. Many are pharmaceutical matters.

But Thailand also operates a criminal patent enforcement system. There are a dozen or so cases per year, but it really only works with clear cut infringement, otherwise there are difficulties in proving the "wilful" infringement requirement.

Indonesia operates both a criminal and civil patent system too. Civil cases are very rare, typically a couple of cases per year. So far most have been patent revocations. Criminal patent infringement in Indonesia has tended to be brought through police raids, and all cases reach a settlement, recognising the difficulty in proving wilful infringement, especially given most are secondary liability cases because the products are imported. In any event almost no IP cases of any kind reach prosecution in Indonesia at present. As a general observation IP Komodo thinks it is questionable whether public authorities really ought to be engaging in criminal patent investigations. IN IP theory patents are more like commercial property disputes. Patent protection unlike copyright (which seeks to protect artistic freedom and creativity) is not generally felt to be deserving of criminal attention. And given the complexity of patent disputes, are administrative bureaucrats like the police really equipped to handle such cases?
 
Sunday, February 5, 2012
 
 
South East Asia IP laws
 
Using WIPO's excellent laws database, I have provided links to all the South East Asian countries' IP laws below left. These include not only the statutes, but also a number of subsidiary rules and regulations. The relevant civil and penal codes and equivalents are there too.
 
Thursday, February 2, 2012
 
 
Philippines trademark filing data
 
Annual reports from IPOs in this region are good lizard fodder.

In the Philippines the 2011 IPOPHL data show trademark filings increased from 16,812 applications in 2010 to 17,928 in 2011. Foreign applicants comprised 43% of the total filings with US applicants 23%.

The Philippines reported local Filipino trademark applicants increased in 2011 by 7%, showing that Filipino businesses are more aware of the need for trademark protection. Contrast that with weakness in local patent filings here, which is the common trend in most emerging markets.

Trademark pendency also improved from 10 months in 2010, to 8 months in 2011.
 
Wednesday, February 1, 2012
 
 
Philippines local inventor paucity
 
After reporting the rise in recent patent applications in SE Asia here, a report from the Philippines noted the lack of local inventions. In 2010, there were just 167 patent applications from local inventors, while foreign applications stood at 3,224.

As a result the government proposes to reinstate the Philippines Inventors Commission, to promote research and development and provide technical, financial, legal, and marketing assistance to Filipino inventors. There is a Technology Application and Promotion Institute (TAPI) under the Department of Science and Technology (DoST) which helps provide incentives to Filipino inventors and inventions. But clearly more is needed.

Some Filipino inventions from the Philippines have won international awards, including for an SMS reader and a solar-powered foot maker. IP Komodo also suspects that more than a few of the 100 or so USPTO patents filed by Filipino inventors each year are from Filipinos living in the US. So Filipino inventiveness is probably not the problem; more likely it is poor awareness of patent value and the lack of a supportive ecosystem in the Philippines. This is what the new policy seeks to address.
 
 
 
 
A unique coffee mark
 
Kopi Luwak is said by connoisseurs to be the finest coffee in all the world. It is certainly some of the most expensive due to its complex production. It is prepared when domesticated Asian palm civets (left) eat coffee berries and then excrete the beans which are then cleaned and roasted (below right, IP Komodo hopes already cleaned!). The digestion process is said to impart extra flavor to the beans.

Now the Bandung department of agriculture in Java is seeking to register Java Arabica Preanger as a collective trademark. Bandung is in mountainous region of Java, perfect for the civets which like altitude, and so are widely farmed. Each animal processes only a kilo of beans per day. The local government hopes to develop the industry through the new mark.

IP Komodo has tasted it and whilst it is good, he hasn’t yet detected why its flavour is unique!
 
Tuesday, January 31, 2012
 
 
Vietnam - preliminary injunctions
 
IP Komodo reported here on the slow development of rules for preliminary injunctions in Indonesia. In Vietnam injunctions in IPR infringement cases (including ex parte) are in theory possible under rules of the Civil Procedure Code (which calls them emergency measures). But the rules are not entirely clear and there are no cases showing how injunctions would work. Many practicalities would be in the judge's discretion therefore.

The lack of injunctions granted is partly due to the lack of civil IP cases, because the market is not developed enough to sustain major civil IP litigation yet. Most IPR cases still tend to be dealt with by the administrative authorities. But changes will come as they are coming elsewhere in South East Asian IP litigation and once disputes of sufficient size appear, we can expect the civil courts will likely see their first injunction applications in the coming years.
 
Monday, January 30, 2012
 
 
East Timor - a new country's IPR progress 10 years on
 
IP Komodo has followed the development of East Timor's IP system since independence in 2002. He even visited several years back. But IPR is not at the forefront of a new country's priorities. Below is how IPR protection stands after a decade.

Section 60 of the East Timor Constitution of 2002 provides that “The State shall guarantee and protect the creation, production and commercialization of literary, scientific, and artistic works, including the legal protection of copyrights”. East Timor is slowly putting into place individual laws to implement its constitution. The Civil Procedure Code came into effect in 2005 and the Penal Code in 2009. But no specific IPR legislation exists yet.

Trademarks. There was until several years ago an informal system to request the Ministry of Justice to stamp an endorsement onto a certified translated (into Portuguese), copy of an equivalent Indonesian trademark registration. However the Ministry has now ceased this. A number of trademarks were so endorsed, but the degree of protection this conferred then and now the system has stopped is uncertain. It was assumed that this created at least some legal rights, pursuant to section 60 of the constitution. But no enforcement has been undertaken.

The current option to seek protection is to publish cautionary notices. These at least gives some notice to consumers about trademark rights. Examples of newspapers are Timor Post and the Suara Timor Lorosae. Cautionary notices can be repeated every few years to ensure public knowledge.

Patents and Designs. There is currently no legislation or system in place so patents and designs cannot be protected.

Copyright. There is no copyright legislation, and as East Timor is not a member of the Berne Convention yet so there is no copyright protection. However the Constitution specifically refers to copyright so it might be possible to argue some level of protection arises.
 
Thursday, January 26, 2012
 
 
SOPA and PIPA reaction in Asia
 
The debate about the US SOPA and PIPA legislation caused many reactions in the South East Asia media over its impact.

SOPA and PIPA are Congessional and Senate bills targeting especially entertainment content piracy such as P2P systems focussed on pirated music like Piratebay. The bills empower IP holders to attack the most difficult to reach pirate websites based on a "good faith belief" of infringement and then seek to take them down, block them from receiving payments, or remove them from search engine results. Of particular concern are "notorious foreign infringers".

The world reacted against them through some 7000 Wikipedia and other website blackouts claiming it violates free speech and web freedom.

Concerns expressed in the South East Asia media are that Asian websites may be in the sights of the US legislation. A common theme was the uboquitous and therefore innoucous nature of piracy in South East Asia. One particularly Filipino concern is that the 'copycat tendency in Philippine legislation' might lead its Congress to replicate the legislation.

IP Komodo feels the impasse in the content providers v ISPs war is not helping anyone. Content providers must provide better business models to supply content in the easier ways that people now want content (but obviously not for free). And service providers must accept some level of responsibility for helping police their networks. IP Komodo really does wonder if SOPA and PIPA would lead to curbing of freedom of speech? Surely attacking Piratebay and the like is not really going to harm the internet. A trial of the legislation with clear checks and balances against IP holder overreaching would be an obvious way to see if it works or not.
 
Tuesday, January 24, 2012
 
 
IP organisations in emerging ASEAN markets - Indonesia
 
Following previous posts on industry IP groups in Thailand here and Vietnam, here Indonesia's organisations devoted to IP are as follows.

In Indonesia the principal private organization for IP holders is the Indonesian Anti Counterfeiting Society or MIAP (which was modeled on China’s QBPC). It’s members are mainly MNCs and although its remit goes beyond pure anti counterfeiting into general IP issues, it is an active lobbyist for greater IP protection and works closely with the IP office. See here for example of their work.

Several IP attorney associations exist too including the Indonesian Intellectual Property Society (IIPS), chaired by IP Komodo's very good friend Gunawan Suryomurcito and the IP Consultants Association, chaired by another IP komodo friend Justi Wirakusumah. These two tend to provide expertise for the government to rely on for drafting new laws, as well as engaging in training programs and policy related matters. The Asian Patent Attorneys Association (APAA) has a local chapter as it does in most countries.
 
Sunday, January 22, 2012
 
 
Vietnam - GIs,TMs and dragonfruit
 
In Vietnam the lunar new year called Tet starts next week, and this year there is a fruity IP reason to celebrate.

VN Economy News reported yesterday about the country's frustrations that its well known agricultural products have insufficient IP protection. See here for previous reports about Chinese companies registering Vietnamese GIs in bad faith. Some 53 GIs have now been registered at the National Office of Intellectual Property(NOIP) in Vietnam. But a recent NOIP report indicates that there are at least 800 well recognised agricultural GIs in Vietnam and the report says producers need to do more to secure IP protection, though trademarks, collective and certification marks and GIs.

But in today's fruitnet.com, it is reported that Vietnam's largest dragon fruit exporter, Binh Thuan, has registered its trademark in the US - BINH THUAN for Vietnamese dragon fruit. The importance of this is that as we enter the Chinese New Year of the Dragon is that red dragon fruit are especially popular being lucky colour red as well as very healthy. Much of the company's exports of the dragon fruit are to the US.

Chuc Mung Nam Moi as they say for Happy Lunar New Year in Vietnam!
 
Wednesday, January 18, 2012
 
 
ASEAN - overseas patent filing restrictions on residents
 
EU Blog IPKat published a post on the interesting subject of which countries restrict their inventors from first filing patents abroad (similar to the US foreign filing license). Which got IP Komodo's brain wondering about South East Asia. So here is the list of key ASEAN markets:

Singapore requires all residents (including expats) to obtain approval from the Registrar of Patents to first file abroad.

Malaysia too prevents residents including companies from first filing aboard unless approval has been given.

Philippines, Indonesia, Vietnam and Thailand have no such restrictions.

IP Komodo suggests that when a country reaches a certain threshold of technology development such restrictions are sensible provided they are easy to comply with. But countries which are still developing may not have enough domestic technology to make the restrictions worth having.
 
Tuesday, January 17, 2012
 
 
South East Asia Pharma IP
 
South East Asia is a group of 10 nations with 500 million people. It is an economic growth haven in the current global climate. Pharma IP battles have tended to be around the area of seeking better IP protection from governments. Thailand's has well known issues over access to medicine and compulsory licensing. Counterfeiting is a common pharma industry concern, so too is data exclusivity at Health Ministries.

IP Komodo has noticed a recent change in pharma emphasis which is confirmed now in media reports. The Philippines Daily Inquirer reported last weekend that the Pharmaceutical and Healthcare Association of the Philippines (PHAP) found that the pharma industry’s 2011 recovery was driven largely by generic medicines.

With many products falling out of patent protection generic medicines are driving pharma industry growth in South East Asia. This is aided by constant pressures on containment initiatives by both the private public sectors. The industry itself is no longer split between generics and innovators, with most major household pharma names having generics arms.

IP Komodo predicts that one future SE Asia pharma IP issue will be battles between major pharma companies, with one side's generics arm seeking to launch a product and another pharma company seeking to defend its patents. It is likely that some innovator companies' past patent strategies will be found wanting, as patent families ranging from the molecule through to a final composition may not always have been fully filed in SE Asia. Litigation is inevitable, and major markets like Thailand, Indonesia and Vietnam could see some interesting court battles.

 
Sunday, January 15, 2012
 
 
Thailand GIs
 
Thailand continues to be active in registering Geographic Indications (GIs). This is prompted by strong local industries such as silk and foods. But there has also been cooperation with the EU on various fronts. This includes EU help on registration systems, as well as support from major European GI owners (like the Champagne Committee), and most interestingly of all an EU project on commercialising GIs, leading to some real commerical deals being done, e.g. between some of the champagne houses and the Thai silk industry. As a result Thailand is becoming somewhat of a centre for GIs in Asia.

The latest one is from the Napa Valley Vintners, the nonprofit organisation of the 420 Napa Valley wineries. Thailand will now protect the California wine region from misuse of its name.

IP Komodo understands that 35 GIs have now been registered in Thailand of which 27 are from local Thai producers. The IP office publishes an impressive brochure on all the local producers and their histories. Many involve tasty Thai foods, which IP Komodo thinks would be tasty if he didn't live only on dead meat.
 
Thursday, January 12, 2012
 
 
Philippines enforcement spin
 
The Manila Standard reported last week on the 'remarkable performance...and intensified efforts of the anti-piracy agencies of the government' of the Philippines to seize P8.4 billion of counterfeit items in 2011.

Rather than consider there could have been any rise in counterfeiting, they only indicate their roaring success over and above previous years. In fact they claimed that one of the obstacles is 'the lack of cooperation of brand owners and sometimes settlement of the filed complaints even during the investigation stage'.

Extraordinary thinks IP Komodo, musing on his previous posts here about delays in the criminal system, that one would prefer settlement over a decade of court proceedings to follow up a criminal case!
 
Tuesday, January 10, 2012
 
 
Indonesia - the start of preliminary injunctions?
 
Happy New Year! Although years tend not to matter when your species is 100 million years old.

Indonesia is one of the last of the more developed ASEAN markets not to have a system for preliminary injunctions in its civil court system. Thailand, Philippines, Malaysia and Singapore all have them and use them. Indonesia's post TRIPS IP law revisions in 2001 set out a system for preliminary injunctions in civil cases but specified that a further regulation would lay out the details. The Commercial Court was set up to hear IP cases, but it began operation a year or two later and cases in the early years were fewer than today. Somehow a decade passed by without the implementing regulation (although well known marks and Customs IP protection fall into the same category).

But just before Christmas, a draft regulation regulating Provisional Decisions for Intellectual Property Rights matters appeared at the Supreme Court. It aims to set clear and detailed terms for the process of seeking a provisional decision in the Commercial Court. IP Komodo struggled a bit with the draft, because it seems to focus mainly on Anton Pillar issues and not enough on preliminary injunctions/TROs.

It is supposed to apply to all forms of IP cases, especially infringement, where losses are irrepairable. It also covers goods seized by Customs (although Customs don't yet have any seizure system in place) and civil search and seizure orders where evidence is likely to be disposed of (Anton Pillar Orders).

It is still a draft and Indonesia is famous for allowing these regulations to languish. IP Komodo will keep an eye out for implementation.
 
Thursday, January 5, 2012