Wednesday, February 21, 2007

McDonald vs McCurry

McCurry' to pay damages over name

September 08, 2006

The High Court of Malaysian has ordered an Indian eatery called McCurry Restaurant to pay damages to US fast food giant McDonald's for imitating the chain restaurant's name and signature colours.

High Court judge Siti Mariah Ahmad yesterday ruled McDonald's had the exclusive right to the prefix "Mc'', and said the McCurry Restaurant, which has similar red and gold signage, had tried to capitalise on the global company's reputation.

"The act of the defendant was a deliberate attempt to get an unfair advantage to the detriment of the plaintiff,'' she was quoted as saying by the Bernama news agency in ruling on the suit by the McDonald's Corporation against McCurry.

"The plaintiff had suffered damage to their goodwill and reputation and an erosion to the singularity that they had enjoyed vis a vis the Mc mark, either when used on its own or in conjunction with an item of food'' she said.

The sum of the damages award is to be assessed by authorities, Bernama said.

The judge said McCurry could cause confusion amongst Malaysians with its red and gold logo, which features a chicken giving a thumbs up sign, and ordered the curry restaurant to drop the "Mc'' from its name, Bernama reported.

McDonald's in its suit had said the "Mc'' prefix was a trademark used on all its goods and services and was globally recognised.

But the Kuala Lumpur-based McCurry, formerly known as Restoran Penang Curry House, argued that the prefix "Mc'' was not exclusive to McDonald's and pointed to its use in surnames, including Scottish ones.

It also said it served an array of popular Malaysian dishes which were totally different from the typical burger and fries fare at McDonald's.

McCurry, which has insisted its name is an abbreviation of local popular dish "Malaysian Chicken Curry'', said it would appeal the ruling.

There are 174 McDonald's restaurants in Malaysia, and the company is expanding at about 15-20 restaurants annually, according to the McDonald's Malaysia website.


Defamation suit to test the limits of freedom of speech


January 20, 2007

Defamation suit to test the limits of freedom of speech in cyberspace

IT HAS been threatening to happen for some time now and few who follow developments in the online world were caught by surprise.

When the New Straits Times Press (M) Bhd (NSTP) filed a defamation suit against Malaysian bloggers Ahirudin Attan and Ooi Chuan Aun (a.k.a. Jeff Ooi), the company must have geared up for a severe PR backlash.

The suits were filed by NSTP and its deputy chairman Datuk Kalimullah Hassan, Group Editor-in-Chief Datuk Hishamuddin Aun and former Group Editor Brendan Pereira. NSTP chief executive officer Datuk Syed Faisal Syed A.R. Albar was an additional plaintiff in the suit against Ahirudin.

Ahirudin and Ooi, whose cases will be heard Jan 25 and Jan 30 respectively, must have suspected that something like this was bound to happen sooner or later, and could only hope that they wouldn't be the test cases.

For a few years now, there has been a growing awareness among a cross-section of the local blogosphere that they weren't operating in a legal vacuum, that what they posted on their weblogs or blogs were answerable to the country's laws.

In fact, since last February Ooi had begun carrying a warning on his Screenshots blog ( advising those who posted comments to "bear in mind that whatever is illegal offline is illegal online in this country".

But NSTP would have also known that because it is a major media organisation taking action against two individuals, it would be cast as a David versus Goliath clash. It is going to be an emotionally-charged issue no matter the merits of the case.

One only has to see the reaction of the online community to get an idea. Bloggers are uniting in the face of what they see as intimidation by the powers that be. In various degrees, they see it as a case of mainstream versus alternative media, megacorp versus small fry, old world versus new, controlled versus independent media, repression versus freedom.

Just wait for international media watchdogs and advocates to jump on the bandwagon, too.

Even the foreign wire agencies are painting it in these colours, prominently quoting Opposition Leader Lim Kit Siang's view that the case would have a "chilling effect" on freedom of speech in Malaysia, and that it was a "grave development in the defence of the legal rights of bloggers and citizen journalists in Malaysia to break the stifling monopoly of the mainstream media".

But since when has filing a suit become synonymous with infringing upon one's legal rights? Indeed, wouldn't denying due process to NSTP be an infringement of the plaintiff's rights?

Just as much as bloggers have a right to free and fair comment, those under their scrutiny have a right to legal recourse if they feel they're been portrayed unfairly.

We aren't a failed state yet, the last time I checked.

True, an area of concern would be the ability of Ahirudin and Ooi to mount an effective defence against a relatively deep-pocketed plaintiff, but already supporters of the two bloggers are discussing setting up legal funds for them. Their readers have also noted that some law firms would be happy to defend them on a pro-bono basis.

In a heart-warming way, this is the online community at its best. A movement, Bloggers United, has been formed and has issued a statement that "what you do to any of us, is what you do to all".

The statement added that "as responsible bloggers, we demand and claim our space on the blogosphere for free and fair comment, where important national issues and prominent personalities are discussed."

While there may be extenuating circumstances, which those of us on the outside cannot claim to be privy to, as to why these two bloggers were chosen, a defamation lawsuit involves a third party, in this case the country's legal system, determining if those comments were free and fair.

It also puts the onus on the plaintiff to prove that he suffered "damage" – of reputation, for example – as a result.

The thing is, laws are put in place to protect both individuals and organisations. While they may express their support for the bloggers concerned, surfers should also welcome these lawsuits.

For now lines will be drawn as to what is permissible and what is not in cyberspace; how far you can go in expressing yourself, and more importantly, what legal recourse you have if someone – anyone, including a rival blogger – maligns you on the Net.

Yes, the laws on defamation are there to also protect you, the individual. Given that some political leaders want to introduce new laws specifically for the Internet, that websites and their operators have been threatened with the Internal Security Act, that subtle intimidation has allegedly been tried, and that some media organisations have used their own platforms to unfairly vilify selected bloggers before, it's a welcome change to see existing legislature being used this time around.

Because now, we finally get a case that will also determine just how relevant our laws are in the information age.

Sharifah Aini's Suit - No Complainant?

December 21, 2005

We now hear of a competent Magistrate. His name is Azroul Hisham Azulan.

At the proceedings of Sharifah Aini's defamation suit, all the witnesses were ready. Singer Datuk Sharifah Aini Syed Jaafar was in the courtroom, hoping the defamation against her would begin after a few false starts.

Magistrate Azroul Hisham Azulan would not proceed to hear the case.

Azroul wanted to know whether an official complaint had been filed in this case. He noted that Section 131 of the Criminal Procedure Code stated that no court shall take cognisance of the offence of defamation, among others, except upon complaint made by the person aggrieved by the offence or the Public Prosecutor.

He said the court had examined the charge and found that it did not adhere to the requirements under Section 131 of the Criminal Procedure Code (CPC). Section 131 requires a complaint to be made by the aggrieved person or by the public prosecutor.) “There is no complaint in this case,” he pointed out, saying the court was concerned “whether the proceeding would become a nullity” later.

“Therefore, the court want both parties to submit on this issue before the full trial begins,” added Azroul.

"I want to carry on with the trial but am worried that these proceedings may be nullified or certain irregularities may appear if this matter is not addressed," he said.

Sharifah Aini, 52, is charged with defaming singer Siti Nurhaliza Taruddin in an email to her adopted brother, Ahmad Shaharil Jamaludin, on Aug 24 last year. She is charged under Section 500 of the Penal Code, which carries a maximum two years’ jail or a fine, or both, on conviction.

Sharifah Aini's lead counsel Datuk Muhammad Shafee Abdullah is a well-learned and foxy lawyer. He must have known that if the case proceed, and judgment passed against Sharifah, they would proceed to the Appeal Court to get the Magistrate decision overturned on the point of law as enunciated by Azroul.

Magistrate Azroul has shown his competence in the subject matter.

The judiciary can now be proud of this magistrate's competence. Could other magistrate also show their competence on the legal doctrines and principles? We have yeat to hear of, except the few in the High Court and the great Gopal Sri Ram of the Appeal Court who failed to be promoted to the Federal Court eventhough he is the most senior judge in the Appeal Court, and far senior over the many of the Federal Court judges who had leapfrogged him in promotion over the last decade.

Maunsell, Sharma & Zakaria sues Utusan

March 19, 2006

Civil Engineering Design Consultant, Maunsell Sharma & Zakaria, the consulting firm for the design of Ampang-KL Elevated Highway (KLT) has sued Utusan Melayu (M) Bhd for RM50mil for libel.

Maunsell Sharma & Zakaria Sdn Bhd, filed the suit at the Civil Division High Court registry at Wisma Denmark in Jalan Ampang here yesterday through their lawyer D.P. Vijandran.

In the suit, the firm claimed that the Utusan Malaysia daily had published defamatory words in two page-one articles on Feb 9 and 10.

It said the articles alleged that there were many cracks in the highway and that these were caused by flaws in the engineering design of the highway.

Apart from damages, the company is seeking an injunction, an apology, interest and costs.

Maunsell Sharma & Zakaria is also the design consultant for Middle-ring Road Two (MRR2).

Yesterday, Works Minister Samy Vellu admitted in Parliament that defective design was one of the reasons for the cracks in the Middle Ring Road 2 (MRR2).

"The steel placement did not follow specifications," Samy said in reply to a question from Speaker Tan Sri Ramli Ngah Talib.

Ramli had interrupted Samy Vellu when the minister was giving a technical explanation for the cracks on the MRR2 highway in reply to questions from Datuk Ismail Sabri Yaakob (BN-Bera) and other MPs.

Samy Vellu said his ministry monitored bridges and flyovers but only the MRR2 was found to have "serious defects".