With Merdeka and Malaysia Day often inspiring patriotic-themed campaigns, often time businesses may incorporate national elements such as the Jalur Gemilang into their advertisements or promotional materials. However, businesses should be aware that the use of certain national emblems and names for commercial purposes is regulated in Malaysia.
What does the law say?
The Emblems and Names (Prevention of Improper Use) Act 1963 (“Act”) regulates the use of certain specified names and emblems listed in the Schedule of the Act. Importantly, both the Jalur Gemilang and its name are expressly listed as a specified emblem and name under the said Schedule.
Section 3(1)(a) of the Act is drafted broadly and generally prohibits a person, without the written permission of the Minister, from using any specified emblem, specified name or any colourable imitation thereof for the purpose of any trade or business. The Act also restricts, among other things, the use of specified emblems in trade marks or designs and the making or selling of specified emblems for sale.
Accordingly, where the Jalur Gemilang is incorporated into an advertisement, promotional poster, social media campaign, product packaging or other marketing material for the purpose of promoting a business, product or service, this may fall within the broad prohibition under Section 3 of the Act.
Does this mean businesses cannot display the Malaysian flag at all?
A distinction should be drawn between displaying or flying the Jalur Gemilang in an appropriate manner and using the flag as part of commercial advertising or promotional material.
Official guidance recognises that members of the public may fly the Jalur Gemilang, and businesses are encouraged to display it at their premises, provided that the flag is displayed appropriately and its dignity is preserved.
The position becomes more sensitive where the flag itself is incorporated into a commercial advertisement or is modified or stylised for promotional purposes. The Department of Information’s guidance has specifically cautioned against using altered forms, images or designs of the Jalur Gemilang as advertising materials, including in connection with National Month celebrations.
For further information, please refer to: https://dbook.penerangan.gov.my/dbook/dmdocuments/jalur_gemilang_2020/mobile/index.html
Practical takeaway for businesses
Businesses including creative and marketing agencies should therefore exercise caution when using the Jalur Gemilang in promotional activities. Simply displaying the flag respectfully at business premises is different from using the flag as a marketing assets. Where the actual Jalur Gemilang, its name, or a design that closely imitates it is proposed to be incorporated into advertisements, promotional materials, packaging or other commercial materials, businesses should first consider whether the proposed use falls within the restrictions under the Act and whether the relevant written permission is required.
For businesses that use general patriotic themes such as red, white, blue and yellow colour schemes or Merdeka-inspired messaging, care should nevertheless be taken to ensure that the overall design does not amount to a “colourable imitation” of the protected emblem under the Act.
Conclusion
The Jalur Gemilang is more than a decorative element, it is a protected national emblem. While businesses may participate in national celebrations and display the flag respectfully, incorporating the Jalur Gemilang into commercial advertisements or promotional materials raises a different legal consideration under the Act.
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This article was written by Low Rui Thong (Associate) from Donovan & Ho’s corporate practice.
Our corporate practice group advises on corporate acquisitions, restructuring exercises, joint venture arrangements, shareholder agreements, employee share options and franchise businesses, Malaysia start-up founders and can assist with venture capital funds in Seed, Series A & B funding rounds. Feel free to contact us if you have any queries.
