By SAM STUBBLEFIELD / YANGON | The Irrawaddy
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.
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.”
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
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
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
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.
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
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
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
This article was first published in the December issue of
The Irrawaddy Magazine.
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