Trademark Infringement in Malaysia: What Can You Do If Someone Copies Your Brand?

You have spent years building your brand, developing your products, attracting customers and investing in marketing. Then one day, you discover another business using a brand name, logo or sign that looks remarkably similar to yours.

If you are facing potential trademark infringement in Malaysia, the worst response is often to act before understanding your legal position. Instead, preserving evidence, assessing the extent of the infringement and identifying the IP rights you have may be the most appropriate first steps before deciding on an enforcement strategy.

For businesses that have invested heavily in building goodwill and market recognition, trademark disputes can become an important commercial issue. So, if someone copies your brand or uses a similar trademark, what should you do?

1. Preserve the Evidence Before Taking Action

The first step is to document the suspected infringement. Save screenshots and copies of the other party’s:

• Website and social media pages
• Online marketplace listings
• Advertisements
• Product packaging and labels
• Invoices and receipts
• Promotional materials
• Storefront signage
• Domain names
• Product photographs

Record the date, URL and circumstances in which you discovered the use. This is particularly important for online infringement. A social media account or product listing can disappear or change overnight. A screenshot showing the account name, branding, products and commercial activity may later help establish what and when it was being used. Avoid immediately contacting the other business before preserving important evidence. Your first objective should be to establish a clear record of what happened.

2. Check What IP Rights You Actually Have

The next question is: what legal rights do you have? If your trademark is registered, the position is generally much stronger. Under Section 48 of the Trademarks Act 2019, registration confers exclusive rights on the registered proprietor to use the trademark in relation to the relevant goods or services and to authorise others to use it. The Act also provides a statutory framework for taking action against infringement.

MyIPO similarly explains that registered trademark owners have exclusive rights and may take legal action for infringement under the Trademarks Act 2019. However, your brand may be protected by more than one type of intellectual property. For example, depending on the circumstances:

Trademark: protects your brand identifiers, such as names, logos and other signs capable of functioning as trademarks.

Copyright: may protect original logos, artwork, photographs, advertising materials and other qualifying creative works.

Industrial design: may be relevant to the visual appearance of qualifying products.

Passing off: may provide a potential remedy where an unregistered brand has established goodwill and another party’s conduct amounts to misrepresentation causing, or likely to cause, damage.

This distinction is important because an unregistered trademark does not generally give you the same statutory infringement action available to a registered proprietor. MyIPO states that an owner of an unregistered trademark cannot commence an infringement action under the Trademarks Act 2019, although other legal actions may be available.

3. Assess Whether the Use Actually Amounts to Infringement

While the Trademarks Act 2019 sets out acts that may amount to infringement of a registered trademark, not every similar-looking brand automatically amounts to trademark infringement. The assessment depends on the circumstances. You should consider:

• How similar are the names, logos or signs?
• Are the goods or services identical or similar?
• How are the marks being used commercially?
• Are the businesses targeting the same consumers?
• Are they operating through similar sales channels?
• Is there a likelihood of confusion?
• How distinctive is your trademark?
• What reputation or goodwill does your brand have?

This means that seeing two logos side by side and concluding that they are “the same” is not necessarily enough. A proper assessment should consider the trademark, the relevant goods or services and the actual commercial circumstances.

4. Consider a Cease-and-Desist Letter

If the evidence supports your position, a Cease-and-Desist letter may be an appropriate first enforcement step. Depending on the circumstances, the letter could request that the other party:

• Stop using the disputed trademark
• Remove the mark from websites and social media
• Withdraw advertisements
• Stop selling affected products
• Remove or replace infringing packaging
• Provide appropriate undertakings
• Take other steps to resolve the dispute

A well-prepared letter can sometimes resolve a dispute without immediately proceeding to litigation. However, the letter should not simply accuse another business of infringement without first establishing the legal and factual basis for the claim. An unnecessarily aggressive or poorly supported demand could escalate the dispute or create complications later.

5. What If the Other Party Has Applied for or Registered a Similar Trademark?

Sometimes the problem is not just that another business is using a similar brand. You may discover that the business has also filed or obtained a trademark registration for the disputed mark. At that point, the appropriate strategy may involve proceedings such as opposition, invalidation or cancellation, depending on the circumstances and the status of the trademark. Hence, the timing of your action can therefore be important. A business that regularly monitors its brand and relevant trademark filings may have an opportunity to respond earlier rather than discovering a problem only after a competitor has built significant market presence.

6. Escalate to Enforcement or Litigation When Necessary

If the other party refuses to stop, formal legal action may become necessary. Depending on the circumstances, court proceedings may therefore involve remedies such as an injunction, damages or other appropriate relief. However, litigation is not necessarily the right first move for every dispute. The appropriate strategy depends on factors such as:

• The strength of your trademark rights
• The evidence available
• The seriousness and scale of the infringement
• The commercial value of the brand
• The other party’s business activities
• Whether the infringement is ongoing
• Your desired commercial outcome

Sometimes a cease-and-desist letter is sufficient. In other situations, opposition, cancellation proceedings or litigation may be more appropriate.

Your Trademark Registration Is Only the Beginning

One of the biggest misconceptions about trademark protection is that registration means the job is finished. In reality, registration should be viewed as the foundation of an ongoing brand protection strategy. At intellect, we support businesses beyond the initial trademark filing: from trademark searches and registration to IP management, enforcement and international brand protection.

Our broader IP practice covers trademarks, copyright, patents, industrial designs, licensing, franchising and IP management, allowing businesses to consider their intellectual property as part of a wider commercial strategy.

With more than three decades of experience and an international network supporting IP protection across 180+ countries, intellect works with businesses that need to protect and grow their brands locally and internationally. Because the value of a trademark is not simply the registration certificate. It is the ability to use and protect the brand you have invested in building.