Intellectual Property Laws in Myanmar (BURMA) 1. Trade Marks In Myanmar, there is no specific statutory law on trademarks nor is there any statutory provision regarding registration of trademarks. However, there exists the definition of a trademarks as “mark used for denoting that goods are manufactured or marketed by a particular person.” According to this definition, even words can constitute a trademark. Thus, it should be noted that, in Myanmar, the word “Trademark” can be used in a very wide sense, there being no Trademarks Act. There is no Trademarks Registration Act and therefore registration of a trademark is not necessary, but nonetheless it is usually done as it may have certain practical results. As a matter of fact, Direction 13 of the Registration Act clearly contemplates that trademark has to be registered under section 18 (f) of the Registration Act. Under that Direction, a trademark has to be registered by means of a declaration, which is a solemn statement of facts made by the declarant and usually attested by a Notary Public or a Magistrate of some Judicial Officer. Such a declaration usually states the rights of the declarant to the trademark, and the trademark or label concerned is usually attached to the declaration. Although the mere fact of registration is not conclusive proof of the ownership or user of the trademark, nonetheless it may be prima facie evidence of ownership or user and the ability to produce a registered document may be some help in a criminal or civil proceeding. The registration, as such, is usually followed by an advertisement or announcement in daily newspapers, stating that any fraudulent imitation or unauthorized use of or infringement of the said mark will be dealt with according to law. A person is deemed to apply a trade description to goods who: 1. Applies it to the goods themselves; 2. applies it to any covering label or other thing in or with which the goods are sold or exposed; 3. has in possession for any purpose of sale, trade or manufacture goods to which the trade description has been applied: or 4. Uses it in any manner reasonably calculated to lead to the belief that the goods in connection with which it is used are designated or described by the trade description. In an infringement action, the question of fraud or probability of deception is immaterial, and all that the plaintiff has to prove is that he is the true owner of the trademark and that the defendant is using a get-up which is either the same or similar to his trademark. In a passing-off action, the proprietor first has to prove that he has used the mark and has acquired a reputation in it in the business concerned. He then has to prove that what the defendant has been doing is to cause the defendant’s good to be confused with the plaintiff’s goods with the result that customers are led to believe that they are obtaining goods of the plaintiffs when in fact they are obtaining goods of the defendant. In addition to civil litigation, a person who has established the right to a trademark may take action against anyone for the following offences: a. Using a false trademark, punishable with imprisonment up to three years or with fine or with both; b. Counterfeiting a trademark, punishable with imprisonment up to three years or with fine or with both; c. Making or possessing any instrument for counterfeiting a trademark, punishable with imprisonment up to three years, or with fine or with both; d. Selling goods marked with a counterfeit trademark, punishable with imprisonment up to one year or with fine or with both. Besides the above mentioned provision in the penal code, there exists the Myanmar Merchandise Act, which supplements relevant provisions in the Penal Code. The Act empowers the Court, inter alia, to confiscate all good and things by means of, or in relation to, which the offence has been committed. There is no Trademarks Registration Act and therefore registration of a trademark is not necessary, but nonetheless it is usually done as it may have certain practical results. As a matter of fact, Direction 13 of the Registration Act clearly contemplates that trademark has to be registered under section 18 (f) of the Registration Act. Under that Direction, a trademark has to be registered by means of a declaration, which is a solemn statement of facts made by the declarant and usually attested by a Notary Public or a Magistrate of some Judicial Officer. Such a declaration usually states the rights of the declarant to the trademark, and the trademark or label concerned is usually attached to the declaration. Although the mere fact of registration is not conclusive proof of the ownership or user of the trademark, nonetheless it may be prima facie evidence of ownership or user and the ability to produce a registered document may be some help in a criminal or civil proceeding. The registration, as such, is usually followed by an advertisement or announcement in daily newspapers, stating that any fraudulent imitation or unauthorized use of or infringement of the said mark will be dealt with according to law. A person is deemed to apply a trade description to goods who: 5. Applies it to the goods themselves; 6. applies it to any covering label or other thing in or with which the goods are sold or exposed; 7. has in possession for any purpose of sale, trade or manufacture goods to which the trade description has been applied: or 8. Uses it in any manner reasonably calculated to lead to the belief that the goods in connection with which it is used are designated or described by the trade description. In an infringement action, the question of fraud or probability of deception is immaterial, and all that the plaintiff has to prove is that he is the true owner of the trademark and that the defendant is using a get-up which is either the same or similar to his trademark. In a passing-off action, the proprietor first has to prove that he has used the mark and has acquired a reputation in it in the business concerned. He then has to prove that what the defendant has been doing is to cause the defendant’s good to be confused with the plaintiff’s goods with the result that customers are led to believe that they are obtaining goods of the plaintiffs when in fact they are obtaining goods of the defendant. In addition to civil litigation, a person who has established the right to a trademark may take action against anyone for the following offences: e. Using a false trademark, punishable with imprisonment up to three years or with fine or with both; f. Counterfeiting a trademark, punishable with imprisonment up to three years or with fine or with both; g. Making or possessing any instrument for counterfeiting a trademark, punishable with imprisonment up to three years, or with fine or with both; h. Selling goods marked with a counterfeit trademark, punishable with imprisonment up to one year or with fine or with both. Besides the above mentioned provision in the penal code, there exists the Myanmar Merchandise Act, which supplements relevant provisions in the Penal Code. The Act empowers the Court, inter alia, to confiscate all good and things by means of, or in relation to, which the offence has been committed.
Posted on: Tue, 03 Sep 2013 08:28:39 +0000
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