Recent IP developments in some ASEAN countries

Property rights protection of both physical and non-physical/intellectual — trademark/logo, copyright, patent, etc. — is among the cornerstones of dynamic, mature and market-friendly economies. Individuals and enterprises develop new products and services via innovation and they create new value, new wealth for society.

I am reposting some developments on IPR in the ASEAN. Thanks to the Property Rights Alliance (PRA) for the bi-weekly IP updates.
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Intellectual property protection a ‘key element of Thailand 4.0’
The Nation, October 02, 2017

There’s a role for intellectual property protection in the Thailand 4.0 vision and initiative, and the national government’s Intellectual Property Department sees a role for itself promoting innovation through offering increased knowledge sharing and more convenient services.

“We are a key mechanism in protecting new technology and innovation vital to economic development, and we do this by motivating new developments,” said Thosapone Dansuputra, director-general of the department.

Thailand to accede to the Madrid Protocol
Lexology, October 04, 2017

As of November 2017, Thailand will accede to the so-called Madrid Protocol as member no. 99. This entails cost savings compared to previously when trademark proprietors are to register their trademarks in Thailand. The Madrid Protocol is an international system through which trademark proprietors may apply for protection in several countries through one basic registration.

Website blocking in Malaysia has reduced online piracy, says film makers body
The Edge Markets, October 10, 2017

Website blocking in Malaysia has significantly reduced online piracy, with a 74% fall in traffic to pirate websites recorded in the six months after the government initiated its sixth effort to block such sites in June 2016, says the Motion Picture Association (MPA). As pirate websites generate income through advertising revenue, a disruption to their business model can help stop online piracy, said Oliver Walsh, regional director at the Asia-Pacific hub for Motion Picture Association International (MPA-I).

Trademark protection awareness, registration remain low in Laos
XinhuaNet, September 19, 2017

The number of trademark registrations is lagging in Laos as many businesses lack understanding of their rights and fail to register to protect their intellectual property, according to the Intellectual Property (IP) Department under Ministry of Science and Technology on Monday.

Laos Struggling with Trademark Protection
PRA, October 6, 2017

According to a study by the Intellectual Property (IP) Department of the Ministry of Science and Technology, only about 40,500 trademark applications have been filed in the Southeast Asian country since 1991. This is a relatively low number of applications for trademark protections for a country of 7 million and an economy with a GDP of $37.3 billion.

Brunei’s Patent Examination System to Increase Efficiency Through Agreement with Japan
Lexology, October 11, 2017

On August 28, 2017, the Brunei Intellectual Property Office (BruIPO) signed an agreement to introduce a new patent examination initiative – the Patent Prosecution Highway Plus (PPH+) – with the Japan Patent Office (JPO), which commenced on October 1, 2017. Using this PPH+ system, patent prosecution procedures in Brunei are accelerated by allowing BruIPO to reuse the search and examination results of corresponding patent applications filed in Japan – thus reducing examination workload and time, minimizing costs, and improving patent quality.

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Property rights, trademarks and consumer protection

* This is my article in BusinessWorld last September 18, 2017.

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Private property rights that people and businesses enjoy are among the cornerstones of a free and dynamic society. People have exclusive rights on what to do with their private properties — use them, sell, rent out, or donate.

However, when rights to private property — both physical and intangible assets — are unprotected, society can quickly degenerate into disorder. As a result, consumers will be unable to recognize which among manufacturers and service providers are trustworthy and which are suspicious.

Measuring the extent of property rights protection across many countries is done annually by the Property Rights Alliance (PRA), a Washington DC-based think tank. It produces the International Property Rights Index (IPRI) annually and partners with independent, nongovernment, and market-oriented think tanks and institutes from many countries.

IPRI is derived by getting the score (1 to 10, 10 being the highest) of each country covered in three major areas:

  1. Legal and Political Environment (LP), covers judicial independence, rule of law, control of corruption, and political stability of a country or economy.
  2. Physical Property Rights (PPR), includes registration and protection of physical properties, access to loans.
  3. Intellectual Property Rights (IPR), includes protection of patents, trademarks and brand, and copyrights.

Countries with high scores in two or all three of these areas will have a high IPRI overall score and global rank (see table).

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Among the important insights in the above numbers are: One, the more developed the economies are like Singapore and Japan, the higher the IPRI score and global rank. Which implies that as private property is better recognized and protected, there are more economic activities and innovations that occur.

Two, the Philippines experienced some improvement in its global rank, from 77th out of 131 countries in the 2013 report. It rose to 64 out of 127 countries in 2017. Its low score in legal and political environment was compensated by its high score in physical property rights.

One emerging issue in IPR non-protection is plain packaging (PP) of tobacco products purportedly for health reasons. Besides being slapped with high taxes, tobacco products also feature graphic warnings on packaging. Advertising tobacco products have also been restricted and smoking in may areas have been disallowed, which are part of several moves to deter people from lighting up.

These have been tried in many countries but smoking incidence does not seem to significantly decline as people shift to cheaper and often, illegal, illicit products. So the next step is to prohibit the use of a tobacco brand, logo, or trademark. This has been done in Australia and there are plans to introduce legislation in Singapore, Malaysia and Taiwan.

This plan does not appear to be right because a brand or logo of a company represents how effective it is in developing consumer loyalty and service. Imagine also if all ice cream, all soft drinks, all beer, all wine, etc. will simply be labeled as “ice cream,” “soda,” “beer,” etc. with no brand recognition of who produced or manufactured the products.

Or all government departments and agencies (DoH, DoF, DPWH, NEDA, etc.) will lose their logo and will simply have a generic brand “Philippine government,” it would not seem right.

I have never been a smoker nor have I been a fan of smoking but was once a fan of tobacco ads in cycling or in the F1 race. But I will not recommend the scrapping of a brand or trademark of companies in a particular industry. People who hate the companies should attack them as such and they may even use the company brand for their attacks.

Intellectual property rights like medicine patents, song copyrights, company brand or trademarks, play an important role of recognizing efficiency and innovation. Consumers look up to these brands and decide which ones to support and patronize and which ones to reject based on their specific needs and interests.

Governments therefore, should respect and protect these IPRs the same way it should respect and protect physical private properties. Moreover, people own their bodies and not the state nor NGOs.

After rising taxes, health warnings, and business regulations are in place, governments should leave individuals and allow them to seek their own happiness without harming other people.

Bienvenido S. Oplas, Jr. is the president of Minimal Government Thinkers, which is a member of EFN Asia and the Property Rights Alliance (PRA).

On tobacco plain packaging proposal in Singapore

This is my letter to the HPB yesterday. The auto reply said they have received it and will look into it.
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Subject: Singapore’s plan on “Standardized packaging” of tobacco products
To: HPB_Mailbox@hpb.gov.sg

Health Promotion Board
3 Second Hospital Avenue,
Singapore 168937

Dear Sir/Madam,

I have read your campaign to control tobacco use and promote good health among Singapore citizens, it is a good objective. But I notice that you also plan to introduce or legislate “standardized packaging” or “plain packaging” in tobacco products, and I think it can adversely affect Singapore’s good image on protecting intellectual property rights (IPR).

It is true that smoking is dangerous to one’s health. I myself am not a smoker, never smoked a single stick in my whole life, never worked for the tobacco industry or its allied industries. But I think people have a choice for their body. They recognize the danger of smoking — and drinking, drugs, over-eating, sedentary lifestyle, etc. — and still they do it. They compare the health risks with the pleasure of those actions then they decide whether to continue doing it or not; if they continue, whether to smoke 1 or 20 sticks a day, drink 1 or 10 bottles of beer a day, etc.

Plain packaging (PP) is wrong for the following reasons.

  1. Singapore is known for its clear and strong property rights protection, both physical and intellectual property. Abolition or significant reduction of the trademarks and corporate logo of tobacco companies via PP will dent this image and put Singapore’s adherence to IPR protection in a question mark.
  1. If Singapore is to be consistent in its policy, then it will be pressured in the near future to also introduce PP for alcohol products like beer and whiskey, soda, chocolate bars, other high sugar, high fat content meals and snacks.
  1. People who derive pleasure in smoking will continue to smoke despite PP and they will likely shift to cheaper and illicit products. Overall smoking incidence can either flatline or even increase because tobacco companies will produce cheaper but cool-tasting products, which will attract new  smokers or entice the few-sticks-a-day smokers to become one pack a day smokers. PP will only adversely affect the sale of known and premium products of the big multinational tobacco  companies but not the cheap products of lesser known companies.
  1. If drawn in a graph, the supply curve of cheap cigarettes will move to the right as manufacturers of premium brands will soon produce lots of plain pack but cheap cigarettes. Equilibrium price goes down while equilibrium quantity goes up, even if the demand curve does not move.

Discouraging the people from smoking can be done via more public education. The graphic health warnings, campaigns by the  Ministry of Health and health NGOs or groups are part of such public education.

But some people will continue to  smoke – and over-drink, over-eat, over-sit in  sedentary lifestyle – despite learning more and new things  about the dangers of smoking, over-drinking, and so on. Government cannot micro-manage the lives of people all the  time. What Singapore should continue protecting is its image  as the bastion of IPR  protection, whether companies are in  IT, pharma, healthcare, hotels, food,  alcohol or tobacco.

Thank you very much.

Sincerely,

Bienvenido Oplas, Jr.
President, Minimal Government Thinkers
Manila, Philippines
https://ipinasia.wordpress.com/
http://funwithgovernment.blogspot.com/

TPP, medicines patent and tobacco trademark

After the 4th Asia Liberty Forum (ALF) ended in Kuala Lumpur on February 20, SEANET organized a small group discussion on “business friendly regulations”, same hotel venue. I was one of those invited. Below, Wan Saiful Wan Jan, CEO of IDEAS and Director of SEANET, spoke to explain once again what the meeting-seminar was all about.

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Aside from independent think tank leaders from some ASEAN countries, some friends outside the region were also there, like Barun Mitra, Cris Lingle, Julian Morris, Lorenzo Montanari.

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I gave a brief presentation. Brief as in 8 minutes or less.

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TPP’s liberalization agenda will:

  1. Force open members’ economic sectors such as agriculture, affect poor peasants, women
  1. Further push them into poverty, compete with giant agricultural corporations from more developed countries
  1. Increase corporations’ access to indigenous people’s lands and territories for resource extraction without their free prior informed consent (FPIC)
  1. Undermine country’s right to reject genetically modified

organisms (GMOs), subject those GMOs to prior risk assessment; ensure uninterrupted trade for GMOs to the benefit of major GMO producers and exporters like the US and Canada

  1. Permit corporations to violate labor rights by making it easier to offshore jobs to countries with lower labor standards
  1. Encourage more inflows of migrants who later forced to become undocumented migrants  to add more cheaper and docile labor

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  1. Endanger people’s right to quality and affordable healthcare due to strict intellectual property rights (IPR) on patents, data monopolies to medicines
  1. Make educational materials become expensive with strict IPR
  1. Violate internet users’ privacy rights and will stifle creativity and freedom of expression through severe copyright rules
  1. Mean death to democracy, allow corporations to use investor-state dispute settlement (ISDS) to attack public interest laws to increase their profits; corporations suing governments over living wages, environmental protection , people’s access to public utilities
  1. Have knock-on effects on the whole region, have potential to be the standard that all future trade deals will follow
  1. Promote the hegemony of corporations, neoliberal regimes and political and economic dominance of the US and other powerful States over the developing and underdeveloped economies of the world.

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Among the prominent arguments why people hate the TPP and other FTAs with the US and EU is that stronger IPR protection would mean more expensive medicines, affecting even off-patent, generic drugs. Is this true?

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No. Perhaps all TRIPS flexibilities with regards to newly-invented medicines were respected by the TPPA. Like these texts, the red comments on the right are mine.

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Then I added another aspect of IPR infringement, the abolition of trademarks and brand logo for cigarettes.

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Concluding Notes:

  1. Joining the TPP has more gains than pains for member-countries, especially in exports and overall GDP expansion.
  1. IPR health provisions in TPP not scary, apply only to newly-invented medicines and not to cheaper generic drugs. Existing TRIPS flexibilities for new meds are maintained.
  1. Possible that generic pharma lobby + anti-capitalism, anti-globalization NGOs created more fear than what the TPPA actually provides.
  1. More to fear in government taxation of medicines, mandatory drug price discounts and price controls, than IPR protection.Brief presentation, I think I spoke for only 7-8 minutes, then the others gave their own inputs and insights on other topics. The full 14-slides presentation is available in slideshare.

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Meanwhile, the debate seems raging in Malaysia now regarding their government’s plan to introduce plain packaging in tobacco products too. All these news reported since last week.

plain pack

It’s now a Singapore-Indonesia-Malaysia triumvirate of tobacco plain packaging legislation. Soon it will infect the governments and stakeholders in the Philippines, Thailand, Vietnam, etc. And if they succeed, next would be beer, whiskey, other alcohol products? Then chocolate bars, soda and cola. The WHO should be involved in this new government initiatives. I will follow this development.

Plain packaging and trademark busting

Trademarks and brand logo are important to distinguish companies and producers from each other. A customer can say, “I don’t want to ride airline X because they are frequently late/delayed, nor airline Y too because they are expensive, I prefer airline Z because their fares are cheap they mostly fly on time.” That is branding from the perspective of customers.

When government or many groups dislike or hate something, this is how regulations and later prohibitions look like:

  1. Raise the tax, make it more expensive.
  2. Restrict or prohibit advertising to certain events.
  3. Mandate graphic warnings, like “Smoking kills” and show ugly pictures of dilapited lungs and mouth.
  4. Actual product restrictions to certain consumers, like “for people above 21 years old” and so on.
  5. Ultimately, plain packaging. Like all tobacco products, all beer and wine products, all  chocolate bars, etc. to be labelled as plain “cigarettes” or “beer” or “red wine” or “chocolate”.

Boring and lousy, right?

Of course smoking — and drinking lots of alcohol, and taking lots of soda, ice cream, eating lots of fatty, salty, preserved food, sedentary lifestyle, etc. etc — is bad for people’s health.

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But people — not the state or media or the health NGOs, etc. — own their body. People recognize the risks of smoking, drinking, drugs, etc. and they compare such health risks with the pleasure of smoking and drinking. Then they decide whether to continue doing it or stop; if they continue, whether to smoke 1 or 20 sticks a day, drink 1 or 6 bottles of beer a day, etc.

Too much nannyism by the state purportedly to “protect public health” is wrong, and is a clear smoke screen and excuse for more taxation, more regulations, prohibitions, more government.

Plain packaging of tobacco, beer, whiskey, chocolates, etc. in the Philippines, I do not think this kind of legislation will prosper here. Mainly because legislators themselves are among the big fans of branded tobacco, beer, wine, etc. But it is an opportunity for big time extortion by health regulators and/or legislators.

Meanwhile, the graphic photos law against tobacco consumption, the implementing rules and regulations (IRR) to be signed soon,http://www.interaksyon.com/article/123786/doh-implementing-rules-for-cigarette-graphic-health-warnings-out-before-march

Brand protection and safe medicines

Originally posted on May 18, 2013.

EMHN produced another good paper, Fake medicines in Asia The importance of brands to medicine quality. Authored by a good friend Philip Stevens, this six pages long paper is able to argue that corporate brand protection and brand competition coupled with rule of law, are the best way to protect the public from counterfeit and/or substandard medicines.

Fake or substandard drugs are dangerous and can be fatal. Either the patient does not get well, allowing the disease inside the body to mutate and become more serious, or the drug causes several adverse reactions and trigger more diseases and complications. 


As the “cheaper medicines” mantra is all over the country and the planet, somehow it gives an opening to dirty businessmen to offer really cheap but fake or substandard medicines. They do this by introducing unknown or lesser known brands to non-suspecting patients and drugstores. Or they simply copy the logo, brand and trademark of some known drug manufacturers, innovator or generic, and sell cheap.


The chief government regulating agency is the Food and Drugs Administration (FDA, http://www.fda.gov.ph/ in the Philippines, http://www.fda.gov/ in the US, and so on). The big problem is that this small bureau is mandated to check on the quality of (a) drugs, medicines and vaccines for humans, (b) drugs, vaccines for animals and fishes, (c) food/drink supplements and vitamins, (d) food and juice ingredients, sauces, etc., (e) perfumes, shampoo, soap, detergents, body odor spray, etc., (f) poisonous substances like insecticides and pesticides, and many others.


I think these products constitute at least 10 percent of the total output of the economy. FDA therefore, should have pharmacists, doctors, dentists, chemists, physicists, biologists, engineers, on top of having lawyers and administrators. Is it possible to have such an agency with supposedly super-technical powers and capability to minimize or control mistakes in doing its functions? I really doubt it.


One way to minimize risks and threats to public health, is to devolve product quality to the manufacturers and traders themselves, via brand protection and competition. Like “Jollibbee or McDonalds burger yan”, “Starbucks or UCC or Figaro coffee yan”, “Pfizer or GSK or Unilab or Pharex medicines yan”, “Mercury or Watsons or The Generics yan”, and so on. Consumers hold on to the brand as generally safe and these companies do all they can to avoid not even a single, not one, case of food or drinks or drug poisoning. 


Thus, products of these brands will be given minimal regulations and approval process. The main regulator for these brands and companies is the fear of being blacklisted or boycotted or sued by consumers due to bad or unhealthy products. Since these are huge if not global brands, the thought of being put in a bad light scares them more than the peering eyes of a few inspectors from the regulatory agency. Then the latter can focus their energy and resources on new products and brands. Shrewd and opportunist businessmen can put up a company and sell bad products and services that can harm public health. When the company is blacklisted, they simply close down the company and put up a “new” one and create new schemes to fool the public.


The sub-topics discussed by the paper are:


* Limits of regulation

* Brand competition and drug quality

* Intellectual property and brand integrity

* Brands are not just for multinationals

* Rule of law in defending brands

* Technological solutions to fake medicines

* Malysia’s meditag scheme

* 2D and QR barcodes

* Dangers of government-mandated technology


And the paper’s brief conclusions are:

The most fundamental cause of the spread of fake drugs in Asia has been the inability of manufacturers to protect the identity of their products. This is largely down to a lack of functioning rule of law, which makes it very difficult for manufacturers to protect their trademarks and brands via the civil and criminal courts – thereby handing a free rein to counterfeiters. The extra regulation called for by many commentators may well entrench the corrupt relationship between criminals and certain drug regulators.

Strengthening the rule of law is a vital but long-term process. In the meantime, the private sector should take advantage of its innovative capacity to experiment with different technological solutions to brand infringement. It is well placed to lead this process, as it has unparalleled access to the entire pharmaceutical supply chain, as well as the clear financial incentive to protect its revenue. Governments should encourage this process, but refrain from mandating specific technologies or systems.

This new paper is another good reference for both government administrators and healthcare advocates in the country or abroad. Markets work. And though there are indeed market failures, there are also market solutions to such failures. Government simply have to focus on only one thing: rule of law. Private players and enterprises should do what they say they are supposed to do, and not offer counterfeits or substandard if not entirely useless products and services. If they don’t, existing  governmentregulations and the penalty system should be slapped on them. No exception and no one can grant an exception. The law applies equally to unequal people.