Monday, January 22, 2018

IPR in Myanmar, handle infringement, IPR protection in Myanmar

Intellectual property practice in Myanmar

At present, Myanmar has no IP Laws.
Therefore, it also has no specific IP Governing Body as yet.
In Myanmar, as domestic legislations, IP rights are protectable under the following existing laws:
  • Myanmar Penal Code (1861)
  • The Specific Relief Act (1877)
  • The Sea Customs Act (1878)
  • The Registration Act (1909)
  • The Myanmar Copyright Act (1914)
  • Myanmar Foreign Investment Law (1989)
  • Myanmar Citizen Investment Law (1989)
  • The Television and Video Law; and
  • The Computer Science Development Law.
Myanmar is the member of Regional Organizations and International Trade Bodies such as ASEAN, WTO and WIPO, Myanmar is responsible for carrying out the aims and obligations which are prescribed by the said Organizations.

Registration of Trade Mark/ Service Mark

  • In Myanmar, Registration of Trade Mark/Service Mark goes with the Registration Act Direction No. 13 of the Inspector General of Registration.
  • Trade Marks/Service Marks can be registered, as forms of WORD, IMAGE, DEVICE or LOGO in any colour or in combination of colours, with the Office of Registrar of Deeds and Assurances by means of a "Declaration of Ownership of Trademark" in the name of individual or business organization.
  • To file for trademark application in Myanmar, Declaration of Ownership of Trademark, Power of Attorney and (10) specimen prints of the mark are basically needed. Both Power of Attorney and Declaration must be signed, notarized and the signature and seal of the Notary in turn must be attested by Myanmar Embassy, in the country concerned.
Vital Role of the Cautionary Notice / Advertisement
  • Cautionary Notice also plays very important role as registration in case of trademark
    conflict problem.
  • It is neither compulsory nor stipulated by any law. However, it is established practice
    to make known the public the ownership of the trademark.
  • The aim of the Cautionary Notice is to have public awareness and warning any
    potential infringer and passing off.
  • Therefore, following the Cautionary Notice in the local newspaper as completion of the registration is strongly recommended.
Renewal of Trademark Registration
  • In case of protection of ownership's right, renewal of registration is also play as a pivotal role. In Myanmar,-at present, most of the EP Owners usually renew registration of their Trade Mark/Service Mark once in every three years.
  • Renew of registration is not promulgated by any law.
  • In case of litigation at a Court, still using of the registered trademark is one of the main facts the Court usually taking into consider in its decision. Renewal of registration in every (3 ) years shows that the continue using of prior ownership rights. Renewal of registration in every three years is advisable.
Law enforcement for protection of Trade Mark/ Service Mark
  • In case of trade/Service mark infringement in Myanmar, Civil and Criminal can be taken against any infringer.
Civil Nature
  • A civil suit is maintainable for infringement of a Trade/service mark, and a perpetual injunction may be sought under Section 54 of Specific Relief Act for damages.
  • According to our legal experience, in the case of intellectual property infringement, the Court often takes into consideration of the following primary factors in its decision:
    (a) The prior registered owner of dispute marks;
    (b) Whether goods/services covered the trademarks are same or different? (There has a ruling that it has no right to prohibit or prevent other persons from the use of mark in connection with goods of totally different characters);
    (c) The levels of public awareness between two mark;
    (d) Similarity and confusing of consumers;
    (e) Renewal and published of the Cautionary Notice periodically.

Criminal Nature

Criminal action under the Penal Code also is possible against a person using false trademark or counterfeiting a trademark, or making or possessing any instrument for counterfeiting a trademark or selling goods marked with a counterfeiting trademark, respectively under section 482, 483, 485 and 486 of the said Code.


According to the exemptions of Section 486 of Penal Code, the accused person can be exempted from accusing if she/he can prove as follows:

(1) Perform innocently due to the lack of knowledge on differentiate of counterfeit and genuine.
(2) Can identify the main source of counterfeit goods are obtainable

Punishments ranges are from fine to 03 years imprisonment additionally by a court order of seizure and destruction of infringing articles and goods.
In criminal nature, it is necessary to make preliminary survey on the nature of suit. Base on pre-survey result. We (Coordinating agent) can choose the line of action, hard line (taking raid action against selling of counterfeit goods) or take principal line (made the seller of counterfeit goods sign the Deed of Confession).

Conclusion

Myamnar has no specific Intellectual Property Laws as yet.
But, some existing laws in Myanmar are still protecting Intellectual Property rights.
And also, Myanmar had had Court's decisions which had protected the IP rights of the Plaintiff in case of Trademark Conflict.
New IP Laws are to be enacted in the year 2006 in Myanmar.
The New IP Laws will strongly protect the rights of IP ownerships in Myanmar as other ASEAN Nations.
Therefore, Myanmar has the jurisdiction of IP rights protection in the present to future.

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