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Malaysia Trade Marks and Open Source Software

Source codes of open source software are developed and distributed through licences known as the general public licence (GPL). However, the trade marks of the software developers are not distributed along with these source codes. While distributors’ brands and trade marks belong to them, the underlying source code belongs to the open source community. Therefore, what is being sold or distributed here is just the source code and not the trade mark.

Therefore protecting and enforcing trade mark rights is important when distributing open source software. Infringement and passing-off of trade marks in the technology world, especially in the business of distribution of open source software, has become a rising problem. Many renowned IT companies are faced with a task of preventing these problems. Registering trade marks is only the first step. Infringement proceedings and market investigations are unavoidable when enforcing these trade mark and IP rights.

The local authorities in Malaysia, in particular the Ministry of Domestic Trade and Consumer Affairs recently launched an anti-piracy campaign known as Ops Tulen targeted mainly at computer software. This campaign is aimed not only at protecting the copyright of software but also trade marks. They are working closely with trade mark owners and are clamping down hard on infringers by way of spot checks and frequent raids on people using brand names belonging to others in the hope of gaining false reputation when distributing their software.

In a recent successful raid by the enforcement division of the Ministry of Domestic Trade and Consumer Affairs of several retail outlets in Subang Jaya, Selangor carrying false Red Hat Linux V3.0 open source operating systems, officers seized more than 4,400 CDs is a case in point. Recently it appears that big IT companies such as Red Hat are actively protecting their IP rights whereas many other genuine open source software developers who have valuable trade marks are not as active as they should be in protecting their marks.

This enforcement is to stop developers from riding on the good reputation of other renowned developers rather than develop their own brand names. The local authorities and the courts are taking this kind of behaviour very seriously and are levying harsher sentences for such crimes.

It is hoped that software owners and developers in the open source arena become more aware of their rights and are vigilant in their enforcement efforts.

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