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view of the peculiar circumstances of a particular case, e.g. if there exists a bona fide dispute as to the right to use a trade mark or where there has been undue delay in commencing criminal proceedings to stay his own hands, and direct the complainant to establish his rights in a civil Court, but it is nowhere laid down by the legislature that an aggrieved person should seek his remedy in a civil Court and not in a criminal Court.

In so far as Courts in Burma (Myanmar) are concerned, there has been a large number of cases decided on infringement of trademark. Followings are cited. In B.M.Kharwar Vs. A.M Motiwala Ltd9 , it was held that “A design that has ceased to be distinctive of the goods of any particular person may become a design common to the trade in such goods; but, if before it becomes ‘publici juris’ a trader appropriates it to his own goods after its abandonment by the former owner, and independently acquires a reputation of his own in respect of the mark he is entitled to protection.”

Similarly in John Walkers & Sons Ltd Vs. U Than Shwe* it was held: “A trademark, being in the nature of property, cannot be appropriated by anyone without the permission of its owner. If a person appropriates it, he will be committing an actionable wrong whether he does it honestly or fraudulently;” but held further “A person does not acquire a monopoly in the use of any trade name irrespective of any kind or class of goods inasmuch as there is no such thing as a monopoly of a property in the nature of copy right or patent. An owner of a trademark in respect of a particular commodity has no right to prohibit or prevent other person from the use of such mark in connection with goods of a totally different character.”

For the term ‘cause it to be believed;’ it was held in Gaw Shan Soot Vs.E.C.Madha Bros10; " It is not necessary in order to constitute a colourable imitation that two marks should be similar in every particular, but it will be sufficient in law to constitute a colourable imitation if there exists such similarity between the two marks which could, in the circumstances of a particular case be considered to be calculated to deceive the class of persons for whom the goods are ordinarily or primarily intended.” Though the cases abovementioned were the judgments of the civil Courts they also are referred to as authority for criminal proceedings.

Now we may observe the judgments of criminal Courts. In Abdul Majid Vs King Emperor11, it was held; “If the goods of a manufacturer have from the mark he used come to be known by a particular name the adoption by a rival trader of any mark which would cause his goods to bear the same name in the market may be as much a violation of the rights of that rival as an actual copy of his device. In such cases dissimilarity of the rival marks is not a complete defence.” It was later followed in the law suit of A.M.Malumiar & Co., Vs. Finlay Fleming & Co12. In P.A Pakir Mahomed Vs. King Emperor**, it was broadly observed and decided on the matter of using false trade mark which stated; “In order to establish a case under section 480, Penal Code, the prosecution must prove that the accused marked goods, that he did so in a manner reasonably calculated to cause it to be believed that the goods so marked were the manufacture or merchandise of some other person and that such goods were not the manufacture or merchandise of such person. It is unnecessary for the prosecution to prove that an accused in such a case had acted with intent to defraud; but should the latter prove that he acted without intent to defraud he is entitled to be acquitted. In India there is no method by which a trademark may be registered, but property in or right in respect of a mark may be acquired by user. A person not necessarily a manufacturer who uses a mark for the purpose of his trade may acquire rights to and in respect of that mark. A body corporate, such as a firm, may be prosecuted for an offence under section 482, Penal Code. Even though no cases of purchasers having been deceived by the use of a false trademark are proved, this fact standing alone is insufficient to justify
 

9 1939 Rangoon Law Reports.p.18.
* vide 2
10 1952 Burma Law Reports (High Court) P .136.
11 Burma Law Times Vol X.p. 19.
12 All India Law Reports (Rangoon Series) Vol 7.p.169
** vide 7
 
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