Foreign business not turned off by knock-offs

The evidence is everywhere in Myanmar: at doughnut shops, at a previously Disney-fied liquor stop rechristened “Micky’s” and at tech shops emblazoned with the world-famous Apple logo – not to mention the DVD shops stacked deep with cheap fake movies.

Intellectual property (IP) infringements, vilified as theft in Western markets, aren’t thought of as crimes here, though the way they’re handled could change with new legislation.

The country’s laws don’t yet hit international standards, but the government is working on them. Two decades after Myanmar first joined the World Trade Organization (WTO), draft laws on intellectual property are finally coming along.

The four bills, published publicly in July, could make IP infringements a bigger problem for perpetrators, even though many Myanmar people don’t really know about the issue, according to Myanmar Trademark and Patent Law Firm senior associate U Thein Aung.

“We need IP awareness,” he said. “If not, it will be a very big burden on the shoulders of Myanmar nationals … If we just enacted the law and then punished [infringers], I think it wouldn’t be fair.”

Since Myanmar opened up in 2011, the country has drastically changed. The Union government – now a quasi-civilian administration – has made progress on sweeping reforms, but intellectual property is low on the ladder of priorities, according to Kelvin Chia Yangon director Cheah Swee Gim.

“In any emerging market, I think the focus will largely be on hardcore benefits like infrastructure, power, and oil and gas, and people only begin to look at intellectual property in a more sophisticated, mature system,” she said.

Confusion crops up over definitions in intellectual property rights (IPR), even at a high level, according to EU Myanmar Centre director Billy Harkin. He said a very senior person in IPR originally thought the word “copyright” meant the right to copy – and missed the part about paying for that right.

Meanwhile, among the public, the idea is mostly foreign. Mr Harkin explains that those in media, like the singers covering top 40 hits in Myanmar, are savvy – but that players in tech and branding have “close to zero” awareness.

As for those borrowing brands, Mr Harkin said he believed most people would be amazed to learn their actions would be illegal in many other countries.

“And then if you ask them, ‘Do you think that’s breaking the law here?’ I bet 99 percent would say, ‘I have no idea – is it?’” he said.

U Thein Aung said Myanmar operates under the “common law” and first-to-use system for intellectual property as it lacks a specific trademark law. However, it does have laws related to IP – though they’re relatively scant and dusty.

One of the main pillars of Myanmar’s IP policy is the Registration Act of 1908, dating back to when the country was called Burma under British colonial rule.

Ms Cheah said the Act, originally designed for the registration of land-related documents, also blankets trademark registration. This puts a tenant of modern intellectual property law in Myanmar under the Ministry of Agriculture and Irrigation.

The colonial-era law does not obligate people to register trademarks. Those who want protection should register with the registry office, use their trademark in the market, and publish a notice to promote public awareness, U Thein Aung said.

Meanwhile, the law’s implementation involves approving, with minimal scrutiny, the applications that come in. No public trademark database exists to cross-check claims, and the system lacks an examination procedure.

“You file a self-declaration of ownership of a particular mark,” Ms Cheah said. “There’s no evaluation process by the registrar because they just accept whatever document you file.”

The process could allow people to use the same trademarks in the market, or even register marks of famous brands from abroad, according to experts.

Sometimes the registrar spots trouble and may ask for the previous registrant to provide permission, something that may or may not happen, said Ms Cheah.

“This kind of registration is not recognised as a true-blue registration platform in any other jurisdiction. But it’s the only mechanism available in Myanmar.”

Those that feel someone has infringed on their trademark have two options for legal recourse. They can either launch criminal proceedings under the penal code or seek an injunction and damages, according to the Myanmar Trademark and Patent Law firm’s website.

Cases highlighted on the website involve foreign companies. Its client list includes Kentucky Fried Chicken International, Balenciaga and Dr Martens. Confrontations started with cease-and-desist letters and seemed mostly to end without drama.

“One case settled very quickly,” Ms Cheah said, echoing this point. “It appeared to me that [the local infringers] were not conscious that someone could be upset by the use of the trademark.”

They stopped quickly after Kelvin Chia’s client sent a cease-and-desist letter, she said. One reason people may think they’re not stealing is because experts say some IP infringement isn’t illegal. This fact, along with a lack of ill will, makes for a peculiar setting for hypothetical disputes.

Copying songs isn’t against the law but there’s only a little while left before it will be, said Mr Harkin, adding that the situation presents an opportunity in the ever-moving landscape of the IPR world. “For me, until it’s illegal, it’s not illegal,” he said.

At a mobile shop downtown, which riffs off Apple’s branding with an orange apple on its sign and the name I-Smart, one worker says Myanmar is lacking laws on this issue.

“All the shops around here are imitations,” she said. “I don’t feel it’s right or wrong.”

Even in the face of countless pop-up DVD shops selling movies not yet out of theatres, and knock-offs of famous brands, foreign firms seem relatively unconcerned about IP infringement.

For a long time it was argued the IP framework kept foreign firms from entering Myanmar. But this is not true, said Mr Harkin, with their presence a testament to this fact. They’re more worried about issues such as the election and land prices, he said.

“I think you’d have to have a pretty weak brand to be worried about such things,” he said, adding that he hadn’t met a company which had decided not to invest because of the IPR situation in Myanmar.

The situation makes for a fairly even playing field, said Ms Cheah.

“I guess [multinationals] feel like everybody’s on the same platform and that this is an emerging market, and it’s progressing in the right direction,” she said.

IP rights in Myanmar will evolve with the passage of new laws – but their potential impact remains uncertain. Legislation has been under discussion for years and implementation will prove a challenge once draft becomes law.

Four draft bills – the Trademark Bill, Patent Bill, Industrial Design Patent Bill and Copyright Bill – have already been made public.

The legislation, which has been drafted by the Ministry of Science and Technology and the Attorney General’s Office, has been a long time coming. The Trademark Bill has been reworked 10 times already, according to an intellectual property magazine article from November 2014.

U Thein Aung said that as a member of the World Trade Organization (WTO), ASEAN and the World Intellectual Property Organisation (WIPO), Myanmar would have to comply with certain standards, specifically those set by the TRIPS agreement – an international accord that equalises some intellectual property norms among WTO member countries.

However, Myanmar is a least developed country (LDC) according to the United Nations Conference on Trade and Development (UNCTAD), so has certain privileges that other nations don’t. In the realm of intellectual property rights, its status as an LDC has granted it time to meet standards, and U Thein Aung emphasised taking maximum flexibility within the framework.

Ms Cheah said new legislation will establish an intellectual property office and an evaluation process, as well as a clear procedure for opposition proceedings.

“Further, it sets out substantive provisions for civil and criminal actions,” she said.

The new legislation could positively impact foreign and local investment, but will also introduce stronger punishments on infringers, something U Thein Aung sees as both a deterrent and a potential “burden”, considering the lack of awareness.

Mr Harkin said that if the rules changed dramatically overnight, it could be a “disaster”, adding that in reality this is unlikely as Myanmar lacks the police capacity to for immediate enforcement.

Others share his concerns about rolling out policy changes. Establishing an intellectual property office on paper is very different in practice.

“I’m concerned about implementation – you can have a draft bill, it can be the law as well, but if the Myanmar intellectual property office is not set up, I don’t know how it can get going,” said Ms Cheah. “Who will have the expertise to evaluate for trademarks or patents or design registration?”

Re-registration of trademarks could also present challenges.

For now, the Myanmar-dubbed versions of Western top-40 tunes will continue, as will business under store logos that borrow branding from giants like Facebook and Apple.

“I think by next year there’ll be hopefully a registry set up, but that’s the best that we can hope for,” Ms Cheah said.

In the meantime, Myanmar’s incentive to rush into protecting intellectual property remains limited. Taking on and enforcing international IP laws for the country currently means “net dollars out” in a big way, according to Mr Harkin.

The country has until 2021 to put policies in place that measure up to the TRIPS agreement.

“If you’re viewing it from a pure IPR point of view, this is all taking too long,” Mr Harkin said.

“But if you’re viewing this as defending national interests in the economy and being sensible to people – do you make infringers all criminals one morning with a sweep of a pen?”

Source: Myanmar Times

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