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Can PGRM claims exclusivity in the word ‘GERAKAN’?

23/07/2015

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BN party files complaint with RoS over new movement’s use of ‘Gerakan’ – The Malaysian Insider – http://www.themalaysianinsider.com/malaysia/article/bn-party-files-complaint-with-ros-over-new-movements-use-of-gerakan

Khalid Samad dismisses Gerakan’s worry over word in new GHB movement – http://www.themalaysianinsider.com/malaysia/article/khalid-samad-dimisses-gerakans-worry-over-word-in-new-ghb-movement

Putting aside political support or any cognitive bias, let us look at the legal aspect of whether Gerakan Harapan Baru (GHB) can register its proposed new political party at the Registrar of Societies.

The Societies Act 1966 regulates the registration of any political party in Malaysia.

Section 7 (3)(d)(i)-(iii) of the Act states if the name under which the [party] is to be registered—

(i) appears to the Registrar to mislead or be calculated to mislead members of the public as to the true character or purpose of the [party] or so nearly resembles the name of such other [party] as is likely to deceive the members of the public or members of either [party];

(ii) is identical to that of any other existing local party; or

(iii) is, in the opinion of the Registrar, undesirable.

So in general, it is an objective test ie would an ordinary person be misled between Gerakan Harapan Baru (GHB) with Parti Gerakan Rakyat Malaysia (popularly known as Gerakan)?

As far as I am concerned, there is yet to be any case decided by our local Court concerning dispute of a political party’s name.

Referring to the case of Woollard v. Australian Electoral Commission and Liberal Party of Australia (WA Division) Inc [2001] AATA 166 a Tribunal considered an appeal against an AEC refusal to register the party “liberals for forests” because the name was too similar to that of the Liberal Party of Australia and its abbreviation “Liberal”.

The Tribunal, comprising three federal court judges, directed the AEC to register “liberals for forests” and held that the names were not so similar as to prohibit the registration of “liberals for forests”. The Tribunal stated that political parties use in their names generic words such as “Australia”, “liberal”, “labour”, “democrat”, “national”, “christian”, “progressive”, “socialist” and the like.

Apparently based on the ratio decidendi of this case, it is in favour of GHB to register it’s name.

In another case of The Fishing Party v. Australian Electoral Commission and Australian Fishing and Lifestyle Party [2009] AATA 170; one of the matters raised and considered was the similarity of the names and whether the new party’s name should therefore be prohibited. The Tribunal stated that the AEC “has previously formed the opinion that the two names of the Fishing Party and the Australian Fishing and Lifestyle Party are not sufficiently similar as to be misleading or confusing. No argument was advanced by [the applicant] in support of this contention. We agree with this determination because the words “and Lifestyle” are sufficient to aurally and visually distinguish the two parties as separate entities without risk of confusion or mistake, and would prevent a reasonable person from thinking there was any connection or relationship between the two parties.”

However subsequently the AEC has refused a party called the “Country Liberals” (unrelated to the Liberal Party) as it could be seen to be the branch of the Liberal Party of Australia which addresses the needs of country Australia.

The party was eventually registered using the name Country Liberals (Northern Territory).

So is GERAKAN a contentious name?

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