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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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