IP Background
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(g) The Burma Patents &
Designs Act
The Burma Patents & Designs (Emergency
Provisions) Act
Both Acts were enacted as
Burma Act No.5 of 1945 and Burma Act No.1 of
1946. Preamble in 1945 Act states: " Whereas
it is expedient to make legislative
provision for the protection of inventions
and designs. Relatively it will be more
essential for the present age than the time
it was passed."
The interesting point we
find in 1945 Act is that, though section 1
(2) of that Act provides: " It shall come
into force on such date as the President of
the Union may, by notification, direct." ,
in the footnote it is mentioned that the Act
was published in Commerce and Supplies
Department Notification No. 8, dated the 3rd
August 1945 and republished in Burma
Gazettee 1946, Part 1, page 136, this Act
has not yet been brought into force. But it
came into effect later that date untill it
was repealed on the 31st day of March 1993
as second repealment with law No. 4/93 by
the present government.
There had been matters
relating to the provisions of 1945 Act
adjudicated by the then highest judicature
of our country.
In the case of Maung
Sein Bros Vs. The Burma Plastic Moulders 40,
it was held: " In a suit for declaration of
ownership of a certain design which has been
registered by the plaintiffs and for an
injunction to restrain the defendant from
using a similar design it open to the
defendants to raise as a defense to the
plaintiff’s suit that the plaintiff’s design
was neither new nor original."
It was held only on the
matter of defense, but as a whole for both
parties was held 41: " Where the trial judge
had held that the plaintiff’s comb which had
a ‘toot kwet’ design on the base was new and
original, and therefore should be protected.
Among the Burmese people the ‘toot kwet’
(diamond cut or chiselled pattern) is a
favourite design for bangles, combs and
other articles of jewellary. The design on
the plaintiff’s comb is nothing more than a
variation of the said ‘toot kwet’ design."
ORBITER: " The fact that
the defendant-appellant’s combs are almost
identical in shape and design may be
relevant in a suit for declaration of
ownership of a design."
As we discussed before,
having repealed the Patents & Designs Act of
1945, the only Law relating to patents and
designs still in force is the Burma Patents
and Designs (Emergency provisions) Act 1946.
It has been enforceable retrospectively due
to section 1(2) of this Act since 1st July
1941. Though section 2 of this Act provides:
"Until the Burma Patents
and Designs Act, 1945 comes into operation,
the India Patents and Designs Act 1911,
shall continue to have effect in Burma, as
if, notwithstanding the separation of India
and Burma, Burma had continued to be a part
of India and accordingly references in that
Act to the Advocate-General, the High Court
and to the District Court, shall be deemed
to include references to the
Attorney-General of the Union of Burma, the
High Court and the District Courts in the
Union of Burma and the President of the
Union of Burma shall be regarded as one of
the authorities to whom certain documents
are to be sent under section 72 of that Act
." nothing has been applicable since the
repealment of substantive Act of 1945.
40 1962 Burma Law Reports. P.297
(Chief Court)
41 1964 Burma Law Reports. P. 32
(Chief Court) |
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