The End for „Dominick Pizza” in India

The Delhi High Court forbade the use of the mark “Dominick Pizza” as it might be confused with “Domino’s Pizza”. Both marks are too similar phonetically, in spite of the different spelling. The dangers of possible confusion are particularly high if food items, restaurants, or hotels are involved. Operators have to take special care to distinguish themselves from a well-known brand. Domino’s Pizza had already prevailed over „Hominos Pizza“ and „Domi’s Pizza“. Likewise, some years ago, „SardarBuksh“ changed its name to „Sardar-Ji-Bakhsh Coffee“ after being sued by Starbucks. “Burger Singh”, however, keeps operating. It will be interesting to watch where the line will be drawn in the future.

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Your contact person in India: Dr. Jörg Schendel

Suman Khaitan & Co.

W-13, West Wing, Greater Kailash Part-II
Delhi 110048, Indien

www.sumankhaitanco.in
germandesk@sumankhaitanco.in
schendel@adwa-law.com

New Indian Codes for Criminal Law and Procedure

In December 2023, the Indian parliament passed three new bills. The Bharatiya Nyaya Sanhita, 2023 (BNS), will replace the Indian Penal Code, 1860; the Bharatiya Nagrik Suraksha Sanhita, 2023, the Code of Criminal Procedure, 1973, and the Bharatiya Sakshya Adhiniyam, 2023, the Indian Evidence Act, 1872. The acts have been promulgated, but are not yet in force, pending a notification by the Indian government. The BNS, inter alia, introduces communal service as a new form of punishment. There are also some changes concerning specific crimes. Inter alia, the legally contested crime of “Sedition” has been replaced by “Acts Endangering Sovereignty, Unity and Integrity of India.” It remains to be seen how much actually changes. There are also new sections on “Organised Crime” and “Terrorist Acts.” The other acts will be presented in future posts.

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Your point of contact in India: Dr. Jörg Schendel

Suman Khaitan & Co.

W-13, West Wing, Greater Kailash Part-II
Delhi 110048, Indien

www.sumankhaitanco.in
germandesk@sumankhaitanco.in
schendel@adwa-law.com

Reform of the Japanese Arbitration Act

The amendment to the Japanese Arbitration Act will come into force by the end of April 2024. The reform of the Japanese Arbitration Act has practical significance primarily with respect to the enforcement of interim measures of the arbitral tribunal and the acceptance of English-language arbitral awards in enforcement generally.

Furthermore, the jurisdiction of the district courts in Tōkyō and Ōsaka for arbitration proceedings has been extended so that the enforcing party is not dependent on the district courts, which previously had exclusive local jurisdiction. This focus on these two courts with the greatest experience in international arbitration proceedings is flanked by the removal of language barriers. In proceedings for the enforcement of arbitral awards, the court can now waive the need for a Japanese translation. It can be expected that at least the two district courts in Tōkyō and Ōsaka will accept English-language arbitral awards without translation in the future. This is of considerable practical relevance because the time aspect is often important in enforcement proceedings.

Also, the amendment establishes further legal certainty for the validity of arbitration agreements. It is clarified that an arbitration clause recorded in a document or by electronic means also satisfies the written form requirement if it is referred to as part of a contract that has not been concluded in writing. Accordingly, the party agreements on the written form take precedence.

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Your point of contact in Japan: Michael Müller

Mueller Foreign Law Office

Shin-Kasumigaseki Building
3-3-2 Kasumigaseki, Chiyoda-ku
Tokyo 100-0013, Japan

TEL       +81 3 6805 5161
FAX       +81 3 6805 5162

www.mueller-law.jp
info@mueller-law.jp

Reform of Mediation Law in Japan

On April 1, 2024, various amendments will come into force in Japan in the field of mediation law in commercial disputes.

One significant change takes into account the ratification of the Singapore Convention on Mediation by Japan on October 1, 2023. This convention establishes a uniform and efficient framework for the enforcement of settlements resulting from international mediation proceedings.

The member states of the convention expect it to facilitate international trade, as it will make mediation settlements easy to enforce across borders for the first time. The courts of those countries are only permitted to refuse enforcement under strict conditions. The reasons are listed in the convention, such as the legal incapacity of one of the parties to the settlement agreement. Japan joint the convention with the reservations that the applicability of the convention requires a corresponding choice of law by the parties in the settlement agreement with regard to enforcement, which is why lawyers will have to pay particular attention to this in future.

The Mediation Act passed by the Japanese parliament in April 2023 to implement the convention even provides for a broader scope of application than the convention. The Singapore Convention requires the fullfilment of these requirements: At least two parties have their place of business in different states, or that the state in which the obligation arising from the mediation settlement is to be performed or which has the closest connection to the subject matter of the settlement is different from the state in which the parties both are domiciled. The new Mediation Act, on the other hand, only requires that at least one party has its place of business outside of Japan and thus includes significantly more constellations.

Finally, the so-called Act of Use of Alternative Dispute Resolution, which is intended to ensure the simplified enforcement of settlements resulting from mediation at domestic level, will also come into force at the same time.

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Your point of contact in Japan: Michael Müller

Mueller Foreign Law Office

Shin-Kasumigaseki Building
3-3-2 Kasumigaseki, Chiyoda-ku
Tokyo 100-0013, Japan

TEL       +81 3 6805 5161
FAX       +81 3 6805 5162

www.mueller-law.jp
info@mueller-law.jp

Economic Outlook for Malaysia 2024

While the economy in the European Union is set to grow by between 1.2 and 1.5% in 2024, many East Asian countries are expected to grow much faster. Southeast Asia scores with strong growth rates. For instance, RAM Ratings expects the economic growth to be between 4.5% and 5.5% for Malaysia in 2024 - a further significant step following the significant negative growth of the economy during the coronavirus pandemic.

While this is good news for investors, the high level of debt in Malaysia is causing some concern. New debt is expected to reach 4.2% of GDP and the current debt-to-GDP ratio of 62.7% is expected to rise further. Malaysia is already spending 16.1% of its GDP on debt repayments and if this amount continues to rise, it will become increasingly difficult for the government to finance new investments. This will also have an impact on companies from the Austria, Germany and Switzerland: in the medium term, investments planned can no longer be carried out. In the short term, there is a risk that important projects will be terminated if there are major geopolitical changes in 2024. This has already been the case in the past.

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Your point of contact in Malaysia: Dr. Harald Sippel

Skrine

Level 8, Wisma UOA Damansara
50 Jalan Dungun, Damansara Heights
Kuala Lumpur, Malaysia

TEL        +60 1 8211 4958
FAX       +60 3 2081 3999

www.skrine.com
harald@skrine.com

Ditiangkin vs. Lazada

The case of Ditiangkin, et al. vs. Lazada (G.R. No. 246892) that was recently published was about five delivery riders who were terminated from their employment in 2017 by Lazada E-Services Philippines, Inc. This company is an online shopping platform that offers a wide range of products and services in the Philippines. It has a constantly evolving technology, logistics, and payments infrastructure that connects Southeast Asia and claims to offers a safe and seamless shopping experience.

The Philippine Supreme Court ruled in favor of the petitioners and ordered Lazada to reinstate them to their former positions as Lazada riders, with full backwages computed from the time of dismissal up to the time of actual reinstatement.

The riders were seen as regular employees of Lazada and not independent contractors, as the company claimed. The court based its ruling on the following factors that Lazada exercised control and supervision over the riders, such as requiring them to wear uniforms, use the company’s app, follow delivery routes, and attend trainings and meetings. Lazada furthermore paid the riders a fixed amount per delivery, regardless of the distance, time, or difficulty of the task. The riders were provided with benefits such as health insurance, accident insurance, and incentives. And finally, Lazada had the power to hire, transfer, suspend, or terminate the riders. For the Supreme court these elements have constituted an “Employer – Employee” relationship regardless how this relationship was defined in each individual service provision contract with the riders.

Through this decision the court also recognized the essential role of delivery riders in the digital economy and the need to protect them from unfair labor practices.

The Philippine supreme court decision on Ditiangkin, et al. vs. Lazada has significant implications for the gig economy, especially for online platforms that engage delivery riders and other freelancers. Some of the possible consequences are that olnline platforms may have to reevaluate their business models and contractual arrangements with their service providers, as they may face legal challenges and liabilities if they are deemed to be employers rather than intermediaries. Furthermore, delivery riders and other freelancers may have more legal protection and benefits as regular employees, such as minimum wage, social security, health insurance, and due process in labor issues. They may also have more bargaining power and collective action to assert their rights and interests. And finally consumers may experience changes in the quality, availability, and cost of the services offered by online platforms, as they may have to adjust to the increased operational expenses and regulatory compliance of the platforms.

The Philippine supreme court decision on Ditiangkin, et al. vs. Lazada is a landmark case that may set a precedent for other similar cases in the country and in the region. It may also inspire more policy and legislative reforms to address the issues and challenges of the gig economy.

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Your point of contact in the Philippines: Lutz Kaiser

Villanueva Gabionza & Dy Law Offices

20th/F Corporate Center
139 Valero St., Salcedo Village
Makati City 1227, Philippines

CELL      +63 995 985 4957
TEL        +63 2 8813 3351
FAX       +63 2 8816 6741

www.vgdlaw.ph
manila@adwa-law.com

Copyrights reaffirmed in the Philippines.

The recently issued Philippine Supreme Court decision G.R. No. 222537 reaffirmed the rights of authors, specifically in the context of music copyright. The case involved the Filipino Society of Composers, Authors and Publishers, Inc. (FILSCAP) and COSAC, Inc., the company that operates Off the Grill Bar and Restaurant. The court ruled in favor of FILSCAP, affirming its right to collect royalties over copyrighted works of its member artists. The case involved the unauthorized exercise of public performance rights and the right to communicate to the public, which are recognized as two separate and distinct rights that may independently be exploited by an author or copyright owner. The court found COSAC, Inc. liable for copyright infringement after it played copyrighted music at the restaurant without securing the necessary permissions. The court stated that COSAC had "unduly enriched itself" for profit when it allowed copyrighted songs to be played without first securing the necessary permissions. Under Section 177 of the Intellectual Property Code, also known as Copyright or Economic Rights authors have rights that include the right to carry out, authorize, or prevent the following acts like Reproduction of the work or substantial portion of the work, dramatization, translation, adaptation, abridgment, arrangement, or other transformation of the work, first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership or public performance of the work. In this case, the court found that COSAC, Inc. had exercised these rights without the authority of the authors, violating their exclusive rights. The court also held that the act of playing radio broadcasts containing copyrighted music through the use of loudspeakers constitutes a new public performance requiring separate authorization, even if the radio station has been licensed by the copyright owner. In this case those infringing activities were committed in two ways: performance by a live band and playing of sound recordings.

The court considered these acts as "infringing activities" and ordered COSAC to pay damages worth PHP 300,000 to FILSCAP. The decision emphasized that copyright owners are entitled to be compensated for their creative work. The court also clarified that the unlicensed playing of radio broadcasts using loudspeakers is a performance separate from the radio broadcast, and is thus entitled to its own protection. The decision underscored the importance of respecting copyright laws, particularly in public establishments like bars and restaurants. It highlighted the need for such establishments to procure the necessary permissions or licenses before playing copyrighted music, whether performed live by a band or played as sound recordings. This means that even if the music being played is being broadcast over the radio, whose royalties have already been paid for by the radio stations, establishments like restaurants still need to secure a license to play the music. Assigning FILSCAP to pursue their intellectual property rights on their behalf should not be taken lightly, as it is a significant responsibility not just for FILSCAP but for the copyright owners as well. In summary, the Supreme Court decision G.R. No. 222537 upheld the rights of authors to control the use of their copyrighted works and to be compensated for their use. It also emphasized the role of organizations like FILSCAP in protecting and enforcing these rights.

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Your point of contact in the Philippines: Lutz Kaiser

Villanueva Gabionza & Dy Law Offices

20th/F Corporate Center
139 Valero St., Salcedo Village
Makati City 1227, Philippines

CELL      +63 995 985 4957
TEL        +63 2 8813 3351
FAX       +63 2 8816 6741

www.vgdlaw.ph
manila@adwa-law.com

Thailand: Amendment to the PDPA: Appointment of a Data Protection Officer

On September 14, 2023, the Notice of the Personal Data Protection Commission("PDPC") on the Appointment of a Data Protection Officer ("DPO") under Section 41 (2) of the "Personal Data Protection Act ("PDPA")" published in the Government Gazette and entered into force on December 13, 2023.

(i) The core activities of the business are the data processing operations.

(ii) The company's core activities require regular or systematic monitoring of personal data.

(iii) The company's core activities involve personal data on a large scale.

Companies subject to the PDPA should therefore consider whether they meet the criteria for appointing a data protection officer (DPO). If so, the appointment process should be completed in a timely manner and both the data subjects and the DPO's office should be informed of the appointment of the DPO.

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Your point of contact in Thailand: Dr. Andreas Respondek

Respondek & Fan Ltd

United Center, 39th Floor, Suite 3904 B
323 Silom Road
Bangkok 10500, Thailand

CELL     +66 89 896 4048
TEL       +66 2 635 5498
FAX       +66 2 635 5499

www.rflegal.com
respondek@rflegal.com