Issue #51: A Whooper Win
Welcome to the 51st edition of OIA!
Here are the latest 🌶 headlines in APAC:
Ling Yah
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A Whooper Win
Pune's homegrown Burger King has just served up a whopper of a victory against its global namesake after a 13-year legal battle.
🍿 What Happened?
Anahita and Shapoor Irani, the proprietors of Pune’s Burger King outlets in Camp and Koregaon Park, have been using the Burger King moniker since 1992 (it started operating in 1989) - well before the American fast-food giant Burger King Corporation even registered its trademark in India.
The US entity, with its empire of 13,000 restaurants worldwide, only thought of entering the market in 2014 and went after the Pune establishment's trademark application, claiming that the latter was causing irreparable harm to its brand reputation.
The Iranis countered by claiming that the lawsuit was driven by bad faith and intended to intimidate genuine business operators. Beyond the name similarity, there was no substantial similarities between both entities.
👀 Now
Burger King Corporation's trademark infringement suit was dismissed earlier this month, with the district judge holding that, "In the absence of cogent evidence, I find that the plaintiff is not entitled for damages, rendition of accounts and the relief of perpetual injunction."
A win for digital healthcare?
Is South Korea's digital healthcare landscape being reshaped?
🍿 What Happened?
From 2010 - 2015, SK Telecom operated an e-prescription service that allowed doctors to electronically transmit prescriptions to pharmacies.
By 2014, it was mired in controversies over potential privacy breaches. This led to a prosecutorial investigation that culminated in SK Telecom's 2015 indictment for alleged violations of personal data protection laws.
Throughout the legal proceedings, the lower courts consistently ruled in SK Telecom's favor, finding that the company merely acted as an intermediary, transmitting encrypted data without accessing or leaking sensitive information.
On August 8, the Supreme Court's Second Division put a definitive end to this 14-year-long legal saga, affirming that SK Telecom's service did not violate either the Personal Information Protection Act or the Medical Services Act.
👀 Now
This ruling sets a precedent for how electronic health services may be evaluated under Korean law, potentially paving the way for a resurgence of digital health innovations.
With both ruling and opposition parties now pushing for revisions to the Pharmaceutical Affairs Act, could this be the catalyst needed to establish clear legal grounds for e-prescription services in South Korea?
Only time will tell.
$70 million win
Nigeria's sovereign shield has just crumbled in its USD 70M US court battle with Chinese firm Zhongshan Fucheng Industrial Investment Co. Ltd ("Zhongshan").
🍿 What Happened?
In 2010, Zhongshan acquired the rights to develop the Ogun Free Trade Zone. By 2016, relations soured, with Zhongshan accusing the Ogun State government of attempting to terminate its appointment and install a new manager for the Ogun Free Trade Zone.
The subsequent arbitration resulted in arbitrators finding Nigeria in breach of its obligations under the bilateral investment treaty with China. Zhongshan was awarded a hefty USD 70 million in compensation.
The situation escalated in 2024 when the Judicial Court of Paris authorised the seizure of three Nigerian presidential aircraft undergoing maintenance in France and Switzerland.
Most recently on 9 August 2024, the US Court of Appeals in Washington, DC rejected Nigeria's claim to sovereign immunity and authorised Zhongshan's final charging orders over 2 residential properties owned by Nigeria.
👀 Hmm
Looks like sovereign rights can only go so far on the international stage!
Spotlight: Michelle Sunita Kummar
What is your current role?
I am currently Head of Disputes and Litigation at CelcomDigi, Malaysia’s largest telecommunications company. I’ve just marked a year in this role and whilst the transition from my last position as Head of Legal at the Asian International Arbitration Centre (AAIC) has been steep given the technical nature of the telco industry, it has been nothing short of exciting and rewarding. I’m also a member of the Results Management Committee of the Anti-Doping Agency of Malaysia (ADAMAS) under the auspices of the World Anti-Doping Agency (WADA), hearing cases involving doping violations and fueling my passion for sports law and arbitration.
What is your proudest achievement?
I’ve been very fortunate and blessed to have had some fulfilling moments in my career as well as personal life, and it would be remiss to mention one without acknowledging the other. This year particularly, I’ve been quite pleased with how I’ve been intentional with my time and showing up for myself by pursuing activities that I’ve kept putting off for want of company and time. I embarked on my first solo travel this year – to Vietnam, and took the phrase “jump off a cliff” literally when I went cliff-diving off Pulau Kapas! It’s come with a lot of practice, but seeing myself deal with inconveniences and challenges in stride with the same enthusiasm as when I savour happy moments has been a proud feat.
The work I did with the AIAC saw me achieve some incredible and key milestones in my career. But I always look back to the work I did in public interest litigation as Junior Counsel in practice with great fondness and pride – working on some of the country’s high profile and notable constitutional cases including acting for the (then) opposition parties of Malaysia in the massive 1MDB-linked scheme against the former Prime Minister of Malaysia, against members of the Election Commission of Malaysia for the misuse and failure of the indelible ink in Malaysia’s 2013 General Elections, acting for the Coalition for Clean and Fair Elections (BERSIH) in successfully resisting a claim in damages by the municipal authorities for alleged property damage, and against the Government of Malaysia in challenging the validity of the Government’s abolition of local government elections, to name some. Working on these cases with the Managing Partner, whom I still consider a mentor, is a marked one, shaping the way I think and approach work today.
If you had 25 hours in a day, what would you do with the extra hour?
Cooking! I thoroughly enjoy spending time in the kitchen cooking up a meal for myself and hosting friends and family with a home-cooked meal. It’s my favourite and go-to mindful practice, and I suppose no one’s complaining when you get a good meal out of it. So that extra hour would be spent cooking and provisioning an additional meal for the day – though on reflection, divesting 10-minutes of that hour to my yoga practice may be necessary to accommodate all that extra eating.
If you weren't a lawyer, what would you be?
I’ve always had an interest in journalism and if the opportunity presented itself, I think I could see myself as a news anchor. There’s a degree of intuition and people skill that I find is unmatched and often goes underappreciated in this role. Can’t say that my penchant for story-telling would rise to the occasion but it’s definitely a role I would have pursued, but alas, “the road not taken”.
Your favourite food haunt is...?
This one’s a tough ask for a foodie like me, but if I had to pick one out for being sheer comfort food – it would be Moon Kee Fish Head Noodles in Petaling Jaya. The kicker being, my order is limited to just fish maw and noodles in the milky fish bone broth – no fish head or slices! The dish is everything that warms the soul (and tummy!) and my friends know to never patronise this quaint spot without me.
Food Reveal: Ministry of Crab
Ministry of Crab is known for, you guessed it, its crab!
Specifically, Sri Lanka's legendary mud crab which weigh anywhere from 500g to 2kg and is the literal showstopper of this quaint but classy establishment.
Other interesting facts to note: Ministry of Crab was voted The Best Restaurant in Sri Lanka 2022 and is currently one of Asia's 50 Best Restaurants. It is also set in a preserved 400-year-old Dutch Hospital in Colombo and headed by chef-restaurateur Dharshan Munidasaalongside Sri Lankan cricket legends Mahela Jayawardena and Kumar Sangakkara.
If you ever need to host a client dinner in Sri Lanka and aren't opposed to getting a little bit messy, then we'd definitely recommend a stop at Ministry of Crab!
Address: Website, Google Maps
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Special thanks to Overheard in Asia's sponsor:
David Grief was described as "the Law's Middleman" (Business Times, 2021). You can reach out to him at dg@davidgrief.com if you need help identifying the right lawyer, arbitrator or expert for your matters, or even if you just want to grab a drink 🍵🍺 with someone who has managed and mentored lawyers for almost 5️⃣0️⃣ years!