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For the past few years, the nation of Myanmar has been proactively working on the implementation of its first ever formal trademark law, keeping in mind that the new law will overhaul the nation’s legal framework to encourage and motivate the industries and businesses to come and invest and grow in the country [1].
The implementation of this new Trademark law has been projected for this year. Hopefully once this new trademark law becomes effective, the practices which are currently followed by the practitioners i.e. the registration of Declarations of Ownership at the Registrar of Deeds and Assurances, which is followed by the cautionary notices published in the newspaper, will then be replaced by the new modern Trademark system which will stick to International standards set by WIPO.
The new Trademark law will prove to be greatly beneficial to the brand owners and businesses as the new law will bring proper clarification to the whole trademark application process. Since the Myanmar market is on an economic rise, the new trademark law, once implemented, will be a welcome move for the businesses and their brands, thereby encouraging further growth and prosperity of their brands in Myanmar.
The New Trademark System
The new Trademark Law will be based on the first-to-file principle. The new law will have the following features:
- The new Trademark law will include following marks which can be protected [2]:
- Smell and touch signs,
- Visual marks, and
- Perceivable sound.
The above mentioned marks are categorized further into service, trade, collective marks, and certification. Registration as a group/collection of marks will also be allowed.
- The new law will allow both domestic and global/foreign brand owners to apply for registration of trademarks in Myanmar. Having said that, the global/foreign applicants will have to appoint an authorized agent and this agent must be domiciled in Myanmar [2]. This agent will then represent these foreign mark owners at the Myanmar Intellectual Property Office on their behalf.
The new Trademark law will allow the trademark applications to claim priority from foreign applications/registrations.
- The registration process under the new trademark law will include [2]:
- Filing of an application (where, the application must be either filed in either English or Burmese and must have a Declaration of Intention to Use)
- Substantive examination and other formalities
- Publication for opposition and
- Issuance of certificate.
- The validity duration of the registered trademarks will be 10 years from the effective filing date and after each renewal will extend the validity by 10 years [2].
- The new Trademark law will also have a provision for submitting a request for a non-use cancellation against those registered trademark which are not in use for a period of 3 consecutive years [2].
- The new Myanmar Intellectual Property (IP) office will be created [1] to look after the operations in the new Trademark law. Additionally, new Intellectual Property Courts specialized in handling trademark litigations will be established.
- Enforcement:
The new Trademark law will have both civil as well as criminal liabilities for potential infringements in Myanmar.Such liabilities as far as Trademark infringement in Myanmar is concerned will have a criminal offence punishable by maximum up to 3 years of imprisonment or fines or both [3].
Another feature which is a welcome move is the possibility that a trademark owner can enforce its rights through customs. In other words, with enough reasons for alleged import, export or transit of infringing goods into, out of or via the country, the trademark mark owners will be allowed to apply to the Department of Customs for a detention or suspension order.
- Transition from the current to new trademark law
All those owners who have their trademarks registered under the current trademark law will be required to, within the period of three years, re-register under the new law [4].
About the Author: Shilpi Saxena, Jr. Patent Associate at Khurana & Khurana Advocates and IP Attorneys can be reached at shilpi@iiprd.com.
References
[1] http://www.wipo.int/edocs/mdocs/aspac/en/wipo_tm_tyo_2_16/wipo_tm_tyo_2_16_3_4.pdf
[3] www.wipo.int/ip-development/en/pdf/asean/myanmar.pdf
[4] Griffiths, AJ Park -Amanda. “New Trade Mark Laws for Myanmar Coming in 2017.”Lexology.Lexology, n.d.