Myanmar IP Development

Since it became a member of ASEAN in 1997 and of WIPO in 2001, Myanmar has become responsible to observe and be in compliance with the provisions of relevant treaties of such organizations, particularly, TRIPS Agreement and the ASEAN Framework Agreement on Intellectual Property. Myanmar has obtained special exemption of time preparation to apply the TRIPS Agreement till July 2013. Meanwhile, the Attorney-General Office, with the close cooperation with Ministry of Science and Technology that is designated as the focal point ministry to handle the Intellectual Property matters, is drafting the IP laws to have wide and efficient protection and promotion, being demanded by the regional and global IP regimes.
As a former British colony, much of the early intellectual property (IP) law in Myanmar had its roots in UK and European law. Since the 19th and early 20th century, however, the development of IP law in Myanmar has not kept pace with legal and economic changes, both domestically and overseas. This country has not yet acceded to the Paris Convention, Madrid Convention and its Protocol.
Patent and Design
The Myanmar Patents and Designs Act, 1939 was first introduced to Myanmar and then enacted Myanmar Patents and Designs Act, 1945 after the first one expired, but which never came into effect. The 1945 Act was repealed in 1993 and Myanmar Patents and Designs (Emergency Provisions) Act of 1946 is still existing in Myanmar with no legal essence as to operation of Patents and Designs. During the lack of a specific Statute, patents and designs may be registered under the existing Registration Act, Chapter 18. Besides, Section 54 of the Special Relief Act applies to infringement of patents or designs right.
 
Trademark
No Trademark Act is established in Myanmar; however, an established practice has well developed for the evidentiary assertion of the rights of trademark ownership. Differently from other countries, Myanmar’s trademark system is in fact a recordation system. Therefore, trademark right is not an exclusive right granted by governmental department. In Myanmar, trademark is recorded by means of submitting Statement of Ownership to the Myanmar Recordation Bureau. This statement must include the name and the signature of applicant.
Despite the fact that registration is not a conclusive proof of the ownership, it becomes a prima facie evidence of ownership and may be of certain help in the criminal and civil proceedings.
In Penal Code, Sections 478 to 489 in Chapter 18 provide definitions of trademark: the mark representing the products or commodities produced by a specific person. The Civil Code does not provide the specific meaning or elements of trademark. However, it is generally believed that a trademark should be distinctive. A trademark should contain one or more creative terms, or can be recorded for certain specific kind of products.
There is no restriction on the color combination of trademark. Myanmar adopts the use priority system and identifies the holder by the original certificate of trademark. Recordation is the basis for preventing others from counterfeiting. Therefore, it does not matter whether the brand or mark constitutes a trademark. The manufacturer can enjoy legal protection by using this mark, which is the unique advantage of the common law system in combating against fake. On contrary, others counties with sophisticated trademark registration systems can only achieve this by antiunfair competition approaches. The duration of trademark right is started from the date of first use and ended when the holder permits others to use the trademark. Otherwise, using and possessing false marks, the defendant is liable to be fined and/or imprisoned if found guilty.
In the absence of specific Trademark Law, by observing a series of case laws and prevailing practices in Myanmar, a person aggrieved by the infringement of his trademark can have two remedies open to him: (1) he can institute criminal proceedings under Penal Code and/or (2) he can bring an action for an injunction and damages.
The recordation period for trademark is 3 years, and it could be extended after expiration with each renewal of 3 years.
 
Copyright
The Copyright Act of 1911, which came into force on February 24, 1914, was primarily based on the development of the UK's 1911 Copyright Act, and the only substantive difference is the section dealing with penalties. Despite the existence of the Act, the registration process has not been specified.
The Copyright Act applies to literary, dramatic, musical and artistic works, which must be:
 First published in Myanmar; or produced by individuals who, at the time of the work's creation, were citizens or residents of Myanmar.
At the sole discretion of the court, the Copyright Act can also apply in cases where copyright is first obtained abroad and later in Myanmar.
Owners of copyrightable works have 10 years from the date on which the work is first published in Myanmar to apply for copyright. Copyright protection extends for the period of the owner's life plus 50 years.
It is also possible to obtain some degree of copyright protection under Section 54 of the Specific Relief Act.
Chapter III of Myanmar Copyright Act, which is effective in 1914, prescribes penalties for the certain offences in the manner that: (a) knowingly making for sale or hire any infringing copy of a work in which copyright subsists; (b) knowingly selling or letting for hire or by way of trade exposes or offers for sale or hire any infringing copy of any such work; (c) knowingly distributing infringing copies of any such work, either for the purposes of trade or to such an extent as to affect prejudicially the owner of the copyright; (d) knowingly by way of trade exhibits in public any infringing copy of any such work; (e) knowingly importing for sale or hire into the Union of Myanmar any infringing copy of any such work; (f) knowingly making or having in possession any plate for the purpose of making infringing copies of any work in which copyright subsists; (g) knowingly and for private profit causing any such work to be performed in public without the consent of the owner of the copyright.



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