BUSINESS BRIEF: MYANMAR
BUSINESS BRIEF: MYANMAR
Myanmar is a country with a legal system based on common law. English law is still in use, supplemented by case law that has been built up nationally. However, many changes are now being made, with new laws passed and draft laws queuing up at the Myanmar parliament.
Patents and design Te Burma Patents and Design Act, 1945 has already been revoked; new patent and industrial design laws have been draſted and are waiting for parliament to promulgate them in 2014.
At present in Myanmar, patents and designs can be registered under the Registration Act and they do not have to be examined before registration.
To apply for a patent, it has to be registered in another country. So in practice the registration of a patent means that one registered elsewhere is simply registered in Myanmar. While at present there is no examination, there will be under the new law. It is intended that in line with international patent practice, patent applications
will be examined, enquiries
made to the country in which the patent has been registered, and an examiner will test it before approval. Tere will be a completely new procedure before a patent registration is granted in Myanmar and the patent registration cost will be different under the new patent law. Existing patent applications will not be recorded in an online database but the new patent office will try to adopt international standards to introduce the best possible system for patent applications in Myanmar.
Designs can also be registered; for these too, there is no prior examination step although the design has to have been created and used in Myanmar.
Trademarks To protect a trademark in Myanmar, it has to have been registered under Direction 13 of the Registration Act. A trademark is registered by means of a declaration of ownership: a solemn statement of facts made by the declarant and usually attested by a public notary, a magistrate or a judicial officer.
When registering a trademark, the owner must make the following affirmations in the declaration document:
• Te trademark is being used actively for specific goods or services that the owner wishes to market in Myanmar;
• Te trademark has been created by the owner from his/her own original idea;
• Te trademark is not an imitation or a fraudulent copy of a trademark owned by any other person or entity; and
• To the owner’s knowledge, no person or entity has manufactured and/or distributed any goods of the same type using the same trademark.
The registration of a trademark does not automatically confer ownership rights on the registrant. To receive conclusive rights for a registered trademark, the trademark owner will need to have used the mark in its business. If there is a strong association in the public mind between its marks and its goods, the owner can obtain an exclusive right to use the mark. A registered trademark document gives prima facie evidence of trademark ownership and the right for it to be protected in Myanmar.
While Myanmar has not yet changed its statute law, passing-off actions for infringement can still be brought under common law, and passing-off
128 World Intellectual Property Review Annual 2014
cases favour the protection of well-known marks in Myanmar.
Since 1968, it has been possible for actions for infringement against counterfeiters to be brought under Criminal Law, Sections 478 to 489. Civil law, the Myanmar Merchandise Marks Act, the Special Relief Act, Section 54, and the Sea Customs Act can also be used against counterfeit goods in Myanmar.
Trademark case law is the source of Myanmar law, and these facts have been established by trademark case law:
• A counterfeit product does not have to be the same as the original. Tere may be some differences but it has to be nearly the same; it has to infringe the trademark of the original;
• If there is no agreement between partners, the Partnership Act, Section 14, ensures the mark is partnership property;
• A trademark is property: nobody can use a mark without the trademark owner’s permission. If someone uses a trademark, whether by honest mistake or misuse, action can be taken against them; and
• A trademark can be transferred by the owner. It can be actually transferred or the owner can be succeeded by someone else. It is the property of the trademark owner.
Te new Myanmar trademark law is already in draſt form. It will ensure that trademark ownership will protect against counterfeit goods in Myanmar and, under the new law the following will be defined: mark, trademark, service mark, collective mark, certification mark, geographical indication, well-known mark and so on. Te objective of the new trademark law is to develop trade and commerce by protecting
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