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I. LEGAL BASIS
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.
II. INDUSTRIAL DESIGN RELATED MATTERS IN MYANMAR
1. Definition of Industrial Designs
An industrial design protects a specific appearance of a product embodied by three-dimensional configurations, lines, colours, or a combination of these elements. In order for an industrial design to be granted, the design must be new, creative and have an industrial application.
2. Basic information on Industrial Designs in Myanmar
Although the Burma Patents and Designs (Emergency Provisions) Act 1946 came into force upon the repeal of the Burma Patents and Designs Act 1945 in 1993, there is presently no law in operation on patents and industrial designs, while only draft laws are pending approval. This means that production, commercial use and trade in goods is possible without permission of the people/companies who may hold the patents or design rights outside Myanmar.
Consequently, in order to seek protection for their products, most entrepreneurs have to invest large amounts in protecting their trade marks through the means locally available in Myanmar so that they can protect at least their brand reputation and goodwill from illegal action related to their products and businesses.
Owners of design rights may also seek to rely on passing off in enforcing their design rights in Myanmar, although the efficacy of the courts in hearing design-related passing-off cases remains to be seen.
With regard to pharmaceutical products, the National Drug Law has been promulgated since October 1992 and notifications were issued in August 1993 pertaining to drug registration, drug manufacturing, importing, selling and distribution, labelling and advertisements. In January 1995, The Food and Drug Administration Department was established under the Ministry of Health. There are two committees, namely the Drug Advisory Committee, to supervise drug registration matters, and the Central Food and Drug Supervisory Committee, to supervise drug manufacturing and importation.
There are currently drafts of the Patent Law and Industrial Designs Law, issued in July 2015, which are summarized below:
Draft Industrial Design Law
According to the present draft law, to be eligible for protection, industrial designs must be original and novel. The term of a registered industrial design will be five (5) years from the application date, and it could be renewed for two (2) additional terms of five (5) years each. The maximum duration of a registered industrial design will be fifteen (15) years.
As mentioned above, the Industrial Designs Bill provides for the establishment of an IP office and IP courts, which will serve as the executive and judicial arms in the administration and enforcement of IP rights in Myanmar.
There is presently no functioning system of patent and design protection in Myanmar. Companies should be aware of this limitation and discuss with counsel what strategies may be available.
In order to seek protection for your products, you can consider emphasising trade mark protection in Myanmar to protect your brand reputation and goodwill from illegal action related to your business.
IMPORTANT NOTE
There is no practical position of protecting patents and designs per se in Myanmar although there has been the Science and Technology Development Law since 1994. The Ministry of Science and Technology was newly established in Myanmar as the focal point ministry, but till now, there has not yet been Myanmar Patent & Design Office . However, Burma Patents and Designs Act 1945 was repealed in 1993. The Attorney-General Office has accomplished the redrafts on the IP Laws in compliance with the TRIPS Agreement on account of the fact that Myanmar is a member of WTO, ASEAN and at the latest, WIPO in 2001. Thus, in this interim period before enactment of the specific patent law, patent may be registered under section 18(f) of the Registration Act as an official record. A patent may be registered with the Registry of Deeds and Assurances by means of declaration, which is a solemn statement of facts made by the patent owner. Publication of cautionary notice in a local designated newspaper based on registration is the sole process to remind the public for any possible passing-off and infringement of the right of patent ownership during the period of lack of promulgated law, rules and regulations involved.