IP Background
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circumstances should the
image bearing the image of General Aung San
be registered.” 30
Registration of
trademarks has been a long time practice
despite the fact that registration itself
only is not a conclusive proof of the
ownership. It can be observed from the
series of cases. In Taj Mahal Stationery
Mart Vs K.E. Mohamed Ebrahim V.S. Aliar &
Co. 31, it was held “ In Burma, there is
no system of registration of trade marks,
nor for a statutory title to a trade mark.
So the rights of the parties setting up
rival claims for ownership of a trademark
must be determined in accordance with the
principles of Common Law. It was followed in
U Kyaw Vs U Ba Aye * .
In Ko Maung Ngwe Vs
Mr. B Lal 32, It was held: “ In Thomas
Somerville Vs Paolo Schembri which was a
case from Malta where there was no law or
statute enabling the registration of
trademarks it was held that by general
principles of Commercial Law, as soon as a
trademark has been so employed in the market
as to indicate the purchasers that the goods
to which it is attached are the manufacture
of a particular firm, it becomes to that
extent the property of the firm.”
All the abovementioned
cases show that in the absence of
registration of respective marks it might be
possible for parties only to establish their
rights by circumstantial proof i.e. by the
principles of Common Law or Commercial Law,
rather than by prima facie evidence. And it
might also be said, with great respect that
the learned Judges therein overlooked and
did not recommend the existing Directions of
the Burma (Myanmar) Registration of the
Deeds 1946 or 1962, including the
registration of trademarks.
It does seem, through the
definitions provided in Penal Code and
series of Judgements that the title of a
trademark is generally entitled to
manufacturer. In a recent case on claim of a
trademark is remarkable and it was the case
between Pan American Pharmaceutical Ltd
and Phoenix Laboratory & Corporated 33
, the plaintiff is seeking for the right of
ownership of a trademark named Pluvimin
Multi Vitamin. In that case the trial
court dismissed the claim of the plaintiff
observed the grounds as follow:
“In the present case the plaintiff Pan
American Pharmaceutical Ltd is not the
manufacturer of the said drug i.e. Pluvimin
Multivitamin. It is distinctly evident due
to the Drug Registration Certificate
(exhibit “g”) submitted by the plaintiff
company that the said product is
manufactured by Bannar Geltin Product
Corporation of California, U.S.A and is
exported to distribute for sale into Burma
(Myanmar) by the plaintiff company via the
main distributor Pan American (Myanmar)
Company situated in U.S.A. It is also found
that due to the Drug Registration
Certificate and exhibit 17, submitted by
defendant 1 that the drug is manufactured
and exported to distribute for sale in
Myanmar by it self. Since both parties are
distributors and vendors as licensed
exporters and holders of valid registered
certificates, it is not possible to
adjudicate one party to acquire the sole
rights to ownership or title of the trade
mark. And it be aware of that granting
registration and exportation are officially
made by the administrative body in
authority”.
30 Page 522, Part IV Burma Gazette,
dated 28th April 1962..
31 1950 Burma Law Reports P. 41
(Supreme Court)
* vide 8
32 1962 Burma Law Reports P.93
(Supreme Court)
33 1996 Civil Regular Suit No. 34 |
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