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Direction
13
Trademarks
may be registered under section 18(f) of the Registration
Act, in Register Book 4, by means of a declaration for each
trademark. The declaration shall contain the name of the
Company, individual or firm represented in a special or
particular manner and the signature of the applicant for
registration or some predecessor in his business. A
trademark should have one or more invented words and may be
registered in respect of particular goods or classes of
goods.
Registering
Officers should refuse registration, if the Mark is likely
to be on moral or legal grounds objectionable or likely to
hurt the religious susceptibilities of any class of citizens
of Myanmar.Registration should, for example, be refused
where the document lends itself to use as an instrument of
fraud, or is obscure. Colourable imitation of a currency
note should also be refused for registration. And under no
circumstances should the image bearing the image of General
Aung San* be registered."
Under the above
Direction a trademark has to be registered by means of a
declaration of ownership, which is a solemn statement of
facts made by the declarant and usually attested by a Notary
Public or a Magistrate or some Judicial Officer. Such a
declaration usually states the rights of the declarant to
the trademark, and a specimen of the trademark or label
concerned is usually attached to the declaration. Although
the mere fact of registration is not conclusive proof of the
ownership or user of the trademark, nonetheless it may be
prima facie evidence of ownership or user and the ability to
produce a registered document is certainly a help in a
criminal or civil court proceeding.
In the process of
registering a trademark, the owner shall mention the
following facts in the declaration submitted for
registration:
(a) The said trademark is being actively used for which
specific services or goods, he wishes to market in
Myanmar;
(b) The said trademark has been created by him from his
original idea;
(c) The said trademark is neither imitation nor fraudulent
copy of a trademark owned by any other person;
(d) To his knowledge, no person has manufactured and
distributed any goods of the same type using the said
trademark.
The registration of a trademark by means of a Declaration is
usually followed by publication of a cautionary notice in
daily newspapers, usually stating that any fraudulent
imitation,unauthorized use or infringement of the said
trademark will be dealt with according to law.
Registration of a Foreign Trademark by Declartion of
Ownership
As
Myanmar does not have a Trademark Registration Act, foreign
trademarks are also registered under the Registration Act
and trademark cautionary notices are advertised in the daily
newspaper through their Myanmar Trademark Lawyers. Wordmarks
are especially advertised in Myanmar with pronunciation,
which is a transliteration. In practice, the following
documents are ,essentially required.
(1) A Special Power of Attorney signed by the owner of the
trademark in the presence of the Notary Public and two
witnesses, with the certificate endorsed by the ,Myanmar
Embassy or a Consul or Embassy Official.
(2) A dozen representations of the trademark.
(3) The Declaration of Ownership of Trademark including
Stamp Duty. Usually the Special Power of Attorney is
differently legalized according to the country's legal
system.
Effectiveness of Trademark Registration
In Myanmar, registration
of Declaration of Ownership of trademark under the
Registration Act, by itself can give no legal protection to
the proprietor. The Registration Act applies to the
registration of deeds only and no more. A common law action
is purely factual, relying entirely on the evidence produced
before the court and in no way depends on whether the
trademark in question is registered or not under the
registration Act aforesaid.
Registration of Trademark
under the Registration Act will only be a relevant factor
for the purpose of determining the date since which
trademark owner had intended to claim the trademark as his,
and will not by itself give him a right of property in that
trademark 4, Although the mere fact of registration is not
conclusive proof of the ownership or user of the trademark,
nonetheless it may be prima facie evidence of ownership or
user and the ability to produce a registered document may be
of some help in a passing off case.
Time from which Registered document operates
According to the Section
47 of the Registration Act,a registered document shall
operate from the time from which it would have commenced to
operate if no registration there of had been required or
made, and not from the time of its registration.
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* Past National Leader of Myanmar
4. U Kyaw v. U Ba Aye 1962, Burma Law Reports (Chief Court)
p.187
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