IP Background
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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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