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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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