IP Background
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the contention that the
accused acted without intent to defraud. A
trader cannot adopt a trade mark which
causes his goods to bear the same name in
the market as that by which the goods of a
rival trader are known.”
Similarly, the terms
false trademark, using such mark, intent to
defraud etc., were observed in following two
cases:
In King Emperor Vs Po
Saing13 it was held; “A sold illuminant
kerosene oil of his own refining in tins
originally issued with oil of the same
description by B and bearing B’s trade mark.
The tins had been altered in minor
particulars, and paper labels indicating the
true manufacturer of oil had been affixed.
The bodies of the tins, however, on which
B’s trademark appeared, remained unaltered.
A had committed an offence punishable under
section 482 of the Indian Penal Code.”
In Abdul Shakur
Vs. Emperor14, it was held; “ Where
the accused is using a false trademark the
burden is upon him to show that he is using
such mark without intent to defraud. The
physical resemblance between the two marks
must be taken into consideration. The fact
that one mark may in the market be known
under the same name as another is not
necessarily a violation of the rights of the
owner of the first mark. There must be some
inherent similarity in the marks themselves
which justifies the use of the same name for
both.”
Remaining provisions of
sections 482 to 489, (except from section
488) are generally considered to be penalty
clauses for using, making, counterfeiting,
tempering etc of trademark or property mark.
A person liable to such offences may be
punished with imprisonment which may
variably extend to one to three years or
with fine or with both it is stated.
We might say that we have
dealt with brief but precise account on the
provisions of the Code and its consequential
proceedings so far concerning with I.P.
(especially for trademark) in Burma
(Myanmar).
Lets turning our
attention on the remedy which are usually
granted in suits concerning with
infringement of trademark. Our Courts have
been trying civil suits after the Code of
Civil Procedure15 was adopted from India.
Section 9 in Part 1 of this Code empowered
jurisdiction which reads: “The Courts shall
(subject to the provisions herein contained)
have jurisdiction to try all suit of a civil
nature excepting suits of which their
cognizance is either expressly or impliedly
barred. Explanation . - A suit in which the
right to property or to an office is
contested in a suit of a civil nature,
notwithstanding that such right may depend
entirely on the decision of questions as to
religious rites or ceremonies. ” Hence the
suits are forwarded.
It is due to the
established principle or settled law that a
person, aggrieved by the infringement of his
mark, fails to resort to the criminal Courts
within a year of the offence coming to his
knowledge the law assumes that the case is
not one of urgency and it leaves him to his
civil remedy by an action of injunction. But
the time for taking an action in nature of
civil law suit is not limitless. In Aga
Mahmood Vs . Edward Peltzer16 it
was held: “A fresh right to sue accrues in
respect of each infringement until the trade
mark has become publici juris. The period of
limitation in a suit for an injunction to
restrain from the infringement of a trade
mark is prescribed by Art. 120 of Limitation
Act17.” And it was held further: “that the
infringement of a trade mark is a wrong and
that a right to sue accrues to the person
wronged for and in respect of every wrongful
act committed until such act becomes, as it
may be in some cases, no longer wrongful;
that in the case of a......
13 Lower Burma Rulings Vol 4. p. 192
14 1936 All India Law Reports
(Rangoon Series) p. 96.
15 India Act V, 1908 (1st Jan’1909)
16 Lower Burma Rulings Vol2. p.113.
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