The Trade Descriptions Act 1972 has been repealed and replaced by the Trade Descriptions Act 2011; with the new Act having come into effect since 01 November 2011. Its purpose is to promote good trade practices by prohibiting false trade descriptions and false or misleading statements, conduct and practices in relation to the supply of goods and services.
Some salient changes (and our comments) of the new Act include, but are not limited to:
- Section 9(1) – Trade Description Orders (TDO) are now reserved for owners of registered trade marks; in contrast to the 1972 Act where common law owners are also eligible. Such a limitation may not be popular but it will encourage registration of trade marks.
- Section 9(2) – A TDO is now valid for a mere one year, unless renewed by the High Court on such terms and for such further period as the Court may decide. This is more administratively burdensome but renewal would not be withheld unreasonably.
- Section 20 – It is now a punishable offence to make false or misleading statement in relation to contests and games. This would hopefully curb sham “scratch & win” games of chance, with false promises of prizes, that abound in Malaysia.
- Section 23 – Personal or domestic use is now a defence to a person charged under the Act. However, a body corporate is not entitled to rely on such defence.
- Section 44 – It is an offence to disclose information that is likely to prejudice an investigation under the Act. Some defences have been provided under this new “tipping-off” provision.
- Sections 53 & 66 – These new sections allow admissibility of evidence obtained by agent provocateur (abetting the commission of an offence for the sole purpose of securing evidence) and rewarding whistleblowers with part (not more than 50%) of the fine imposed upon securing a conviction. This is to encourage the public’s participation; in an Act that is ultimately meant to protect the same public.