Crunch Time for Copycats?

YANGON — Imagine for a moment a billboard in downtown Yangon that reads “Kandawgyi Fried Chicken… It’s finger lickin’ good!”

Kentucky Fried Chicken will soon enter Yangon’s fast food market, and you can be sure the company will be concerned about preventing any upstart business using words or images similar to its trademarked brand.

But at present, it is not clear what any legal measures might be, as the legal framework covering intellectual property rights (IPR) in Myanmar is virtually nonexistent.

Amid the general excitement over potential new investment opportunities in “Asia’s last frontier market,” there have been increasing calls for the Myanmar government to hasten the establishment of a new IPR protection framework.

The Ministry of Science and Technology has committed to rolling out a comprehensive set of IPR laws by the end of 2014.

Emerging Legal Framework
Myanmar’s current legal framework for intellectual property rights is a patchwork of colonial-era laws, such as the Myanmar Copyright Act of 1914, and more recent legislation such as the Control of Money Laundering Law of 2002 that mentions IPR only in passing. Other laws that reference IPR include the Penal Code of 1860, the Merchandise Marks Act of 1889 and the Television and Video Law of 1996.

Myanmar’s 2008 Constitution and the Foreign Investment Law of 2012 both contain language guaranteeing the right to ownership of copyrights, trademarks and patents, but the extent of protection and enforcement measures is not clearly defined.

Given the importance of IPR to potential foreign investors, as well as Myanmar’s obligations under the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Association of Southeast Asian Nations (Asean) Framework on Intellectual Property Protection, the Myanmar Ministry of Science and Technology is currently developing a new set of laws dealing specifically with IPR protection.

The Ministry has received assistance drafting the laws and enforcement provisions from the World Intellectual Property Organization (WIPO), a self-funding agency of the United Nations which Myanmar joined in 2001.

WIPO regularly provides this type of bilateral IPR technical legal assistance to developing countries as part of the “WIPO Development Agenda” aimed at “working with developing and least developed countries to enable them to reap benefits from the IP system and to enhance their participation in the global innovation economy,” according to its website.

“WIPO has been providing legal advice and extending legislative assistance [to Myanmar] involving four specific laws, namely patent, trademark, industrial design and copyright laws,” a WIPO official told The Irrawaddy by email. The draft laws will be reviewed by parliament in the near future.

Once the new laws come into force, the official added, “WIPO will continue to provide legal and technical assistance to Myanmar in establishing a modern and effective National IP Office, formulating a National IP Strategy and in building an IP culture in the country.”

Enter International Law Firms
New players are setting up offices in Myanmar to service the IPR sector of the economy. At least five international law firms and consultancies specializing in IPR have opened Yangon offices within the past year or so.

US-based law firm Herzfeld Rubin Meyer & Rose (HRMR) opened its Yangon office in July 2013. According to senior partner Eric Rose, the “major challenges” for IP practice in Myanmar include “non-existent specialized IP-protection facilities and infrastructure and the requirement of new effective IPR laws based on WIPO standards.”

The American Chamber of Commerce, an industry group, opened a Myanmar chapter in October 2013. Judy Benn of the American Chamber of Commerce in Thailand told The Irrawaddy that protecting intellectual property was vital for new companies entering Myanmar. “IP considerations can vary from distinguishing and protecting one’s goods from those of competitors [to] protecting patent, design, trade secrets and valuable research in the information technology arena.”

Benn added, “We can see significant opportunities to develop IP with the coming of fast food chains, multi-national retail companies and software technology in Myanmar.”

Rouse, a global IP consulting services firm, opened a Yangon office in November 2013 in order to assist companies wanting to file for IPR protection and to commercialize existing IPR ownership in advance of the establishment of the new legal framework.

Fabrice Mattei of Rouse’s Yangon branch listed four major IP challenges for Myanmar at present: “addressing pirated trademarks recorded in Myanmar, [raising] public awareness through educating people to respect other people’s IP rights, setting up an IP Office with well-trained examiners to examine trademarks and other IP rights, and establishing a reliable and competent IP judicial system with adequate procedures and well-trained judges.”

Establishing Prior Use Rights
The daily and weekly newspapers in Myanmar are full of adverts staking claims on the use of trademarks within the country—a little-known yet widespread effort by firms to establish their “prior use rights.”

It is understood that the new IPR laws will retroactively recognize trademarks registered in the three years prior to their enactment, so foreign companies have begun efforts to reinforce their ownership claims.

“Currently IP owners can file a recordation for a Declaration of Ownership with the Registry of Deeds & Assurances,” said Benn, adding that this action did not provide conclusive legal proof of ownership as multiple people can register the same trademark.

Companies that have already filed for trademark ownership with the registration office “will have prior examination rights and approval [ahead of] trademarks filed after the new laws are enacted,” confirmed Tin Ohnmar Tun, President of the ASEAN Intellectual Property Association.

While many international companies have already taken steps to secure their IPR in anticipation of the new legal framework, domestic businesses risk falling behind.

Domestic Impact
There are all sorts of goods and services in Myanmar—from pirated movies to counterfeit Louis Vuitton handbags and copycat fast food restaurants—that would be in violation of international copyright, trademark and patent protections laid-out in the new laws.

Proponents of strong IPR laws and enforcement mechanisms in Myanmar argue that they will encourage and reward domestic innovation. Rouse’s Mattei reasoned that “domestic companies will be able to better protect their IP assets” and more easily “expand the protection of their IPRs in foreign countries,” once the new laws are enacted.

IPR proponents argue that Myanmar needs to change perceptions around intellectual property. The government “will need to educate its people on respect of IPR, with no exceptions,” said Rose of HRMR.

Tin Ohnmar Tun highlighted concerns that “most people at grass roots levels are not aware of what constitutes IPR infringements, how trademark registrations are granted, the role of the IPR examiners and how the IPR laws would attract foreign investment within the country.”

As in other countries around the world, the notion that ideas can be held as private property is still not widely accepted or understood in Myanmar.

Governments in developing countries often face a difficult choice between encouraging foreign investment through strong IPR laws and prioritizing the public good through enabling access to knowledge and knowledge-based products such as educational software and medicines.

For example, people in developing countries may be priced out of the market for certain medicines that would otherwise be available in the form of alternative generic drugs.

If the new IPR laws are passed by Parliament and strictly enforced, domestic enterprises will be the most immediately impacted.

At least in the short term, it is likely that small businesses dealing in goods that violate IPR will need to alter their business models, leaving a large number of people out of a job.

That being said, the widespread availability of counterfeit goods in neighboring countries such as Thailand and China points to the likely path Myanmar will travel regarding IPR enforcement.


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