IP Background
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using a false trademark,
the charge against him being that he sold
oil which was not oil manufactured by the
Burma Oil Company in second-hand tins of
that company’s mark without obliterating the
Company’s trademark on the tins, and he was
both times acquitted. On the company by
their agent lodging a fresh complaint
alleging the commission of a fresh offence
by the accused, held, that the complaint was
barred by section 15 of the Merchandise
Marks Act. Although the interpretation that
each sale of oil by the accused in the
Company’s tins being a fresh offence gives a
new starting point for calculating
limitation is the most ordinary one, yet the
intention of the legislature will be
frustrated if it is held that the owner of a
trademark can stand by for several years
while his trademark is being infringed
continuously and then bring a criminal
complaint in respect of some recent instance
in which there has been an infringement. To
interpret the section in that way would
reduce its provision to a nullity, for it
would entirely remove the bar of limitation
except in cases where the series of
infringement has actually ceased.”
And secondly it was
followed in the case of Abdul Majid Vs.
King Emperor*; it was held:
“The period limited by
section 15 of Merchandise Marks Act for a
prosecution under section 14 is to be
computed from the date of the particular
infringement alleged against the accused,
not from the date of any other alleged
infringement by other persons. The owner of
a trademark cannot stand by for several
years while his trademark is being infringed
continuously and then bring a criminal
compliant in respect of some recent
infringement.”
Having discussed about
the Act up to this length, one can observe
that this Act, the Sea Customs Act and the
Penal Code are interrelated each other. We
must move to the next.
(e) The
Registration Act
Like other Acts above it
was enacted as India Act No. 16 of 1908 and
seemed to be enforceable from the date of
1st January 1909. It is still enforceable in
our country. In the absence of Trade Mark
Act it is too questionable for parties to
establish their rights especially in
computing the commencing date of using their
respective marks which are in dispute,
because it is the settled Law that a trader
or a manufacturer produces goods attached
with a distinctive trademark acquires the
rights in property since the time of initial
using.
Though there hasn’t any
statutory provision as to registration of
trademarks per se in Myanmar an established
practice has been developed for the
evidentiary assertion of the rights of
trademark ownership. TradeMarks might have
formerly been registered according to Excise
Commissioner’s Notification (Burma) No.40,
dated 30th January 1924 under section 18
clause (f) of the Registration Act. It was
amended later and since the day of 28th
April 1962, the following has been
substituted as Direction 13 of the Burma
(Myanmar) Registration of Deeds, which
reads:
“ Trade Marks 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 Burma (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
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