Myanmar IP law delays causing anxiety

The uncertainty and delay around intellectual property laws in Myanmar has increased anxiety among investors and global businesses, a new white paper says.

Published by global intelligence consultancy Analytical Alternatives (AAL), the report – titled Myanmar: Counterfeit Dragon or Hidden Tiger? – discusses Myanmar and its IP history, calling the South East Asian country "an increasingly valuable prize for global brands" with "enormous untapped economic potential".

However, political uncertainty, perceived endemic corruption, and the increase in organised counterfeiting activity in neighbouring countries China, India and Thailand, is leaving Myanmar "particularly vulnerable to being both a hub and spoke of brand protection threats" including counterfeiting, IP infringement and organised crime groups, the report claims.

Current IP laws in the country are antiquated, where the existing legislation does not obligate people to register trademarks and no public trademark database exists. "The process could allow people to use the same trademarks in the market, or even register existing marks of other global brands," the report notes. There is particular concern around the expansion of counterfeit medicines in the country, especially as healthcare is a growing sector.

The country though is beginning to overhaul the IP legislature and is drafting new IP laws more in line with international agreements, such as the draft Trade Mark Law, which will introduce a first-to-file system, replacing the current first-to-use system. Also alongside this is the requirement for IP infrastructure such as courts.

However, the government has been slow in passing new draft laws. For instance, the draft Trade Mark Law was first submitted to parliament in 2013; this was expected to be passed in 2015 then 2016 and now the hope is this will be passed in 2017.

Despite the prospect and promise for investors and global businesses, the continued delay in IP legislation is causing "a large degree of uncertainty", the white paper says.

AAL gives three reasons for the delays: the political focus is more on tangible benefits of growth such as infrastructure; political caution over the economic impact to the country of introducing international IP laws, which may have an adverse effect on local businesses; and limited institutional and infrastructure capacity for IP administration and enforcement.

AAL recommends that rights holders register their trade mark in Myanmar as soon as possible prior to launching the product on the market "because whoever registers the trade mark first will then become the owner of that trade mark, regardless of its first use".

"In reality, any new legislation and enforcement regime may result in some uncertainty," AAL said. "Capacity, resourcing and potential outcomes may remain unclear for some time until the first significant cases and enforcement actions are completed, thus providing the required clarity."

The white paper forms the first in a series of locally embedded AAL analyst reports on brand protection in South East Asia.

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