IP Background
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denied by the respondents
(siblings of the appellant) who assert that
the trademark is the property of them as
part of the estate of their parents and they
have every right to use it. Both sides have
been using the trademark in question and
eventually the appellant filed a suit prayed
for a declaration that he is the owner of
the “harp” trademark and for a perpetual
injunction to restrain the respondents from
using the identical or similar trademark as
consequential relief under section 42 of the
Specific Relief Act.
In his judgement, hon’ble
Mr. Justice U Thaung Sein observed: “ On the
whole, there can be no doubt that after the
death of U Hla Gyaw, the appellant carried
on the slipper business and utilized the
Saungauk trade mark. It is also clear that
the first respondent Ma Than started her
business many months after the appellant. By
then the appellant had already acquired the
right to the use of the Saungauk trademark
and the first respondent Ma Than was not
entitled to invade that right. The appellant
was thus entitled to succeed in his suit.”
Similarly in the case of
Maung Sein Brothers Vs The Burma Plastic
Moulders24, the respondents sued
appellants for a declaration that they are
the sole owners of the design which had been
registered to the exclusive user of the said
design on combs manufactured and sold by
them. They also asked for a perpetual
injunction restraining the appellant from
manufacturing or selling combs bearing a
similar design, for damages and for delivery
to them of all the dies, implements, moulds,
etc., used by the appellant for the purpose
of manufacturing combs in imitation of their
design. In his judgement hon’ble Mr.Justice
U San Maung observed; “ No doubt it is true
that the defendants – appellants’ combs are
almost identical in shape and design to that
of the plaintiffs-respondents’. However this
being not a passing off action, the only
point which requires consideration is
whether the plaintiffs’ design is new or
original. Having come to the conclusion that
it not, the plaintiffs’ suit must be
dismissed."
Up to this point it is
considered to be sufficient for a reader to
know how an aggrieved person is capable to
achieve remedy by means of the provisions of
the prevailing Acts in our country.
(c) The Sea Customs Act
Like the Acts above, it was formerly enacted
as India Act No. VIII of 1878 and it’s
seemed to be enforceable since the 1st day
of April 1878. Having after occupied the
lower part of our country there were series
of shipping on trading to and fro our
country. Since the British authorities were
concerned about trading affairs they later
adopted this Act to introduce in our
country. Except for the ammendent enacted by
our succeeding government in 1959, this Act
except for a new offence of “attempt ”
inserted as section 167 B, is still in
force. The section in this Act relating to
I.P is provided in sections 18 & 19 of
Chapter IV . In section 18 ,the goods not
allowed to import to Myanmar either by land
or by sea are listed in no.(d) and (e) as
follows:
(d) Goods having applied thereto a
counterfeit trade-mark within the meaning of
the Penal Code, or a false trade-description
within the meaning of the Merchandise Marks
Act:
(e)Goods made or produced beyond the limis
of the Unied Kingdom, India or Pakistganand
the Union of Burma having applied tghereto
any name or rademark being, or purporting
tgo be, the name or trademark or any person
who is a manufacturer, dealer or trader in
the lUnited Kingdom, in India or Pakistan or
in the Union of lBurma unless-
(i)the name or trade-mark as to every
application thereof , accompanied by a
definite indicatiion of the goods having
been made or produced in a place beyond the
limits of the Uited Kingdom, India or
Pakistan and the union of Burma: and
(ii) the Country in which that place is
situated is in that indication indicated in
letters as large and...
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