Friday, October 29, 2010

Trademark Suit Singapore’s Latest Weapon in Arsenal Against Dissent

Should Australia permit the sale of the ASX to Singapore?

The government of Singapore has revealed its new weapon against political opponents: trademark infringement lawsuits. Singapore is synonymous with “soft authoritarianism,” a system where dissent is quashed mainly by co-option, self-censorship, gerrymandering and the strategic filing of civil lawsuits against opposition politicians. While the Singaporean regime is not above imprisoning its critics, authorities prefer to use courtroom procedures that appear superficially to be content-neutral applications of typical laws. The island nation’s activists can expect to be sued for defamation or campaign violations, to have financially debilitating court judgments entered against them and to be barred from running for Parliament after they are forced into bankruptcy.

Now the country’s long-time rulers, the leaders of the People’s Action Party, are attempting to use trademark infringement claims to identify anonymous critics and to squelch oppositional speech. Despite the fact that the government keeps a tight leash on the mainstream media, it appears to be the first time the island republic has gone after an Internet publication.

The Temasek Review is a formidable operation. In 2009, one or more unidentified anti-PAP dissidents began publishing news, analysis and opinion on the Web site. The site’s domain name was registered by proxy, and the site indicates it operates through a business entity in Panama, far outside the jurisdiction of the Singaporean courts (in which government-backed lawsuits against political opponents have been consistently successful).

On Oct. 9, a state-aligned tabloid, The New Paper, reported that the site’s founder was Singaporean physician Joseph Ong Chor Teck. Six days later, Temasek Holdings, Singapore’s principal sovereign wealth fund, served a cease-and-desist letter on Ong.

“The purpose of this letter is to request, if you are the founder of the Web site, that the Web site stops using the good name of Temasek Review and that its name be changed,” the letter stated. The fund explained it had used the name Temasek Review since 2004 as the title of its annual report and that the Web site was “capitalizing on the good will and reputation” of the name in a manner that was “misleading and irresponsible.”

Ong, for his part, has said he was not currently involved in the site’s ownership or management, but the government-linked Temasek Holdings maintains that he is in touch with the site’s personnel and can communicate the fund’s demands to them. In response to the well-publicized letter, the independent Web site temporarily changed its title to New Temasek Review, transferred its domain name to an unidentified non-Singaporean and now appears to be publishing as normal under its original title.

There is little question that Temasek Holdings is speaking on behalf of the government. Although the fund prefers to present itself as an independent profit-seeking enterprise, Temasek is recognized as a “government company” by the Singaporean Constitution, and it is owned by the Ministry of Finance. Moreover, personnel is policy, and Tamesek is near the heart of the regime. Temasek’s chief executive is Ho Ching, the wife of Prime Minister Lee Hsien Loong and the daughter-in-law of the island’s paramount leader, Lee Kuan Yew.

Although Temasek has not yet filed a lawsuit, the cease-and-desist letter indicates that a trademark infringement action is contemplated — as do certain other maneuvers by the company. And as dissidents and international press organizations have discovered, Singapore has a long history of following through with its threats of lawsuits.

A plaintiff preparing for an infringement action will often apply for registration of the disputed mark (or a similar one) in the specific fields of commerce in which the defendant is operating. Thus, it is probably not a coincidence that in November 2009 — after the Temasek Review started publication and obtained its current domain name — Temasek filed an application in the Intellectual Property Office of Singapore to register the mark Temasek Review in the fields of printed and electronic publications.

In addition, Temasek filed applications in May 2010 to register the similar mark The Temasek Report in Singapore, the European Union and the United States in the same fields of commerce. These filings certainly give the appearance of a litigant preparing its case.

That said, formal registration of a trademark is not necessary for a mark holder to prevail in court. Trademark rights accrue through use — specifically, through the public’s identification of a mark with a good or service’s source of origin — so, in common-law countries like Singapore, an unregistered mark can be protected.

Under Singaporean law — and it would be unprecedented for the government to file a lawsuit against a political opponent anywhere other than Singapore’s own courts — an unregistered mark can be protected if the good or service has an established reputation among the Singaporean public, if the defendant has made a misstatement which will confuse the public as to the source of the product, and if the plaintiff has been damaged. The fund’s cease-and-desist letters attempt to demonstrate these criteria.

In a courtroom which provided a level playing field, there would be several obvious weaknesses in Temasek’s case. Most importantly, there does not appear to be any evidence that members of the public are likely to confuse the once-a-year report of an investment firm with a continuously updated online publication that analyzes swaths of Singaporean life and politics. A “likelihood of confusion,” to use the American phrasing, is necessary to impose a judgment of trademark infringement, and it’s difficult to discern one in this situation.

The word Temasek — which, according to custom, is Old Javanese for “sea town” — is an early place name for Singapore, and geographic marks can be particularly difficult to monopolize. Courts can issue injunctions or refuse registrations if the use of a place name is misleading, but there doesn’t seem to be anything deceptive about a publication named Temasek Review which literally reviews the government and society of the island previously called Temasek.

The unmistakable trajectory of Temasek’s argument is that only the Singaporean government or one of its sub-units would be able to use the word in the title of a publication. Taken to that extent, the Singaporean government’s claimed intellectual property rights would be a cover for censorship and the bullying of competing voices out of the media marketplace.

The regime has other legal arguments it could make. It could claim that the Temasek Review mark is so famous that — like the marks Coca-Cola or Hyatt — no one could use them in any field of commerce. That’s a tough argument to make with a straight face about the name of an annual report (which appears to have been discontinued, since the fund’s 2010 report is titled Temasek Report, not Temasek Review).

The fund could ask for arbitration before the international body which administers domain names, but that would place the burden of proof on the fund to establish that the Web site had a confusingly similar name, had no legitimate interest in its name and was acting in bad faith. More to the point, a domain name arbitration would place the dispute in a neutral international forum, which the PAP has tended to avoid in political cases.

In the end, the publishers of the Web site are probably correct in stating that the agenda of the government is to identify the site’s editors so that they can be investigated and discredited. And trademark and other intellectual property claims are the newest, superficially legalistic methods the PAP will use to protect its hegemony and the privileges of its leaders.

By Paul Karl Lukacs, practicing media and business attorney, is legal affairs correspondent for Asia Sentinel.

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