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IP Background

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Important facts that a plaintiff must prove in a passing-off action i.e. violation of the rights to enjoyment of property can be observed in the case of O.K.Mohideen Bawa Vs. Rigaud Perfume Manufacturers22 and it was held: “ In a passing off case the plaintiff must establish that the goods sold under his label and get up had a reputation in the market as being goods manufactured or sold by him of which the label and get-up was distinctive and well-known in the particular market, and that the label and get-up of the defendant on his goods of a similar character is a colourable imitation of that of the plaintiff.”

In such a case the defendant sometimes pleaded the defense of acquiescence. In the abovementioned case plea of acquiescence was held; “If the defendant plea is that the plaintiff acquiesced in the infringement of his label the defendant must prove that he was ignorant of the plaintiff’s rights and was deluded into thinking that his wrongful action was assented to by the plaintiff with knowledge of the infringement. But this defense is of no avail to the defendant if he is aware of the legal rights of the parties, and deliberately or fraudulently infringes the plaintiffs rights.”

In that case, Sir Arthur Page the then Chief Justice of the High Court of Judicature held further: “ A plaintiff does not lose his remedy on account of delay in filing the suit if he has good ground for not filing the suit immediately on becoming aware of the infringement.”

So far as such cases are concerned the civil Courts usually sustain a temporary injunction during the trial to restrain the defendant from using the trademark in dispute, when the plaintiff makes out a prima facie case. It can be observed by the cases of Saya U Nyo Zeint Vs. Saya Shein* and U Tin Latt (a) U Sai Latt and one other Vs. U Kyaw Nyein**.

Apart from section 54 which is clearly provided for granting relief relating to infringement of a trade mark we may observe other relief whether it might be granted or not by the same Act.

If there exists a bona fide dispute to the right to use a trademark or a rival claim to ownership of a trademark party considered himself to be the real or first owner of such mark prefers to institute the suit under section 42 of the Specific Relief Act which reads:

“Any person entitled to any legal character or to any right as to any property may institute a suit against any person denying or interested to deny his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
Provided that no Court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so.”

Any right as to any property referred to in section 42 is included the ownership of a trademark or other I.P as well, had it been read with the explanation provided in section 54 of the same Act.

With reference to those cases it might be enough to cite two cases out of others. In the case of U Chit Swe Vs Ma Than and three others”23, the appellant U Chit Swe, the eldest son of one U Hla Gyaw (deceased and was a manufacturer of slippers, bearing a trade mark known as Saun gauk, “ harp “ ) claims that he has acquired the exclusive right to the use of abovementioned trademark but his claim was strenuously

 

22 All India Law Reports (Rangoon Series) Vol 10. P. 133.
* vide 18
** vide 19
23 1958 Burma Law Reports 377 (High Court)

 

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