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IP Background

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infringement of a trademark, the owner of the mark has a right to sue for every infringement of the mark until the mark becomes publici juri , that is to say until the proprietor of it has effect thrown open the use of it to the public by allowing his right to be so habitually infringed that trademark no longer conveys to those who see it the impression that the goods to which it is attached are the manufacture of one manufacturer, or the goods of one person or firm, who originally adopted the mark”. And was also held: “ therefore, the suit for an injunction was not barred by limitation.”

Besides the question of limitation, how the Courts approach or consider the question on whether injunction would be granted or not is interesting. In the case Saya U Nyo Zeint Vs. Saya Shein18, it was held: “That if a party makes out a prima facie case, i.e. a case of a clear colour of title as distinguished from proof of real title, he is entitled to a temporary injunction if other conditions are satisfied.” And held also: “That in order to obtain temporary injunction restraining the use of a trademark or label, the plaintiff must show that the case is of some urgency, that he has a clear colour of title and the granting of injunction will not cause irreparable damage to the defendant if it be later proved that the defendant has a right.”

It was followed in the most recent case of U Tin Latt (a) U Sai Latt and one other Vs. U Kyaw Nyein19, it was held:” There were examples of granting temporary injunction prior to be permanent had the suit based on what seems to be so without further or deeper investigation. To consider the matter of whether or not should temporary injunction be granted, it needs not to prejudge on the title of trademark, imitation but only to bear in mind that the suit is prima facie or not.”

In one of the most prominent cases, John Walker and Sons Ltd Vs. U Than Shwe,* there arose a question about maintainability of the suit inasmuch as the defendant respondent asserted that an action for infringement of a trademark is unknown to Burma. Hon’ble Mr. Justice Thet Pe observed; “ So far as India is concerned, prior to the introduction of the Trade Marks Act, 1940, the Chancery Law of England regarding the infringement action was embodied in section 54 Specific Relief Act, which is still in force in this Country up to the present moment. The relevant portion of this section reads:

“When the defendant invades or threatens to invade the plaintiff’s right to or enjoyment of property the Court may grant a perpetual injunction. Explanation. – For the purpose of this section a trademark is property.

Illustrations

(w) A improperly uses the trademark of B . B may obtain an injunction to restrain the user, provided that B’s use of the trademark is honest.

It is true that the late High Court of Rangoon had in Gaw Kan Lye Vs. Saw Kyone Saing20 held that in the absence of a Trade Mark Act no action could be brought for infringement of a trademark in this country. The learned judges therein, with due respects, must have overlooked the provisions of section 54 Specific Relief Act, which clearly authorize the Courts in Burma to grant injunctions in infringement suits. * * *I am therefore of the opinion that the trial Court is correct in coming to the conclusion that the appellant’s suit for infringement of his trademark is maintainable.”

 

17 India Act IX, 1908 (1st January 1909.)
18 1948 Burma Law Reports. P. 134.
19 2001 Burma Law Reports pp. 216-232.
* vide 2
20 1939 Rangoon Law Reports p. 488.

 

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