Democratic Voice of Burma

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• Foreign investors aren’t deterred by Burma’s haphazard trademark system
• Bullet Points: 16 October 2014
• Ethnic alliance calls on Burmese army to cease assaults
• Journalists sentenced to 2 years for sedition
• Seven Kanbalu plough protestors released from jail
• Unity or disunity – are Karen groups joining forces?

Foreign investors aren’t deterred by Burma’s haphazard trademark system Posted: 16 Oct 2014 05:08 AM PDT On Tuesday, the newly formed Licensing Association of Thailand (LAT) wrapped up its inaugural meeting in Bangkok, where intellectual property (IP) professionals discussed some of the challenges faced by companies seeking to license their patents, trademarks, and copyrights in Southeast Asia. A key sponsor of the event was Tilleke & Gibbins, a law firm that opened its first office in Bangkok in 1890 and recently opened an office in Rangoon. After the LAT meeting, DVB spoke with Michael Ramirez, a senior consultant at Tilleke & Gibbins, who now spends most of his time at the firm's office in Rangoon. Mr. Ramirez indicated that while Burma's lack of a robust IP legal regime is a major issue for foreign companies seeking to invest in the country, it's not necessarily the most important factor driving investment decisions. "Serious investors; that is, those investors who are viewing Myanmar [Burma] as a long-term investment, are not dissuaded by the lack of a fully developed IP regime. It's certainly an issue—it's an issue that needs to be addressed – but it is not the determining factor for most of our clients in making that decision to enter the marketplace. Those broader decisions tend to be made based on a number of different inputs," said Ramirez. Currently, Burma does not have laws that recognise foreign patents or trademarks, and it's not party to international treaties which obligate signatories to protect patents or trademarks registered in other signatory countries. Burma also lacks a single, comprehensive trademark law, so trademarks in the country are protected by a hodgepodge of laws, some of which date back to the colonial era. This mix of various laws has created a unique trademark system whereby anyone can obtain a degree of protection over any trademark by either using the mark in trade or filing a "declaration of ownership". Filing such a declaration is the equivalent of registering a trademark in other countries, and filing a "declaration of ownership" is considered as Burma's way of "registering" a trademark. In Burma, however, trademark "registration" does not provide the same protection as trademark registration does in other counties. One distinct feature of Burma's trademark "registration" system is that multiple people can actually file a "declaration of ownership" for the same trademark. As a consequence, anyone can obtain a degree of ownership over famous brands such as "KFC," simply by filing a "declaration of ownership". Moreover, prior use of a trademark trumps any rights obtained by filing a "declaration of ownership". Thus, foreign trademark owners who think they can protect their trademark simply by filing a "declaration of ownership" without actually doing business—perhaps because they want to do market research first or wait until investment conditions are more suitable—can still lose out to local players who are using the brand in their business. This might explain why Burma had its own version of Walmart and a fast-food company called "ICFC". Burma's "ICFC" sold the same products and had a logo similar to the original KFC, which recently decided to enter Burma—a decision which, in part, might have been made to protect its trademark in the country. As Ramirez puts it: "A first user can complicate or muddy the waters" for a foreign trademark owner, whose only remedy is to file a lawsuit. This is because Burma's lack of a specific trademark law means that there aren't any special trademark infringement procedures available to fast-track an original trademark owner's claim against alleged infringers. Instead, original trademark owners must use Burma's uncertain and slow-moving judicial system. Related Stories Upper house approves TV & Broadcasting Bill BUSINESS WEEKLY 10 OCTOBER 2014 Burmese pilot confirmed dead on Hkakabo Razi Upon signing the World Trade Organization's TRIPs agreement, Burma became obligated to modify its haphazard trademark regime by enacting a single, comprehensive trademark law that comports with a body of international standards that has developed over the years and now constitutes a uniform legal framework, often referred to as international trademark law. Until Burma adopts a new trademark law, however, more than one person can declare ownership over the same trademark—so even if a foreign company tries to beat erstwhile trademark bandits by quickly filing a "declaration of ownership", another person can use that foreign company's trademark. Two Tilleke & Gibbins trademark experts who helped organize the LAT meeting, Alan Adcock and Darani Vachanavuttivong, told DVB that until a new trademark law is passed, they typically advise companies to file a "declaration of ownership" in Burma as soon as possible if they're interested in entering the market at some point. Otherwise, they run the risk of being sued by a person who has already used or registered the trademark. Yet despite Burma's efforts to obtain help drafting a new trademark law from international IP associations (e.g. WIPO and INTA) and a series of pronouncements that a new trademark law would soon be passed, the law still hasn't made it through parliament. Currently, the draft version of Burma's new trademark law provides a mechanism by which a "declaration of ownership" can be converted into a trademark certificate similar to those issued in other countries with "regular" trademark registration systems—but only if the trademark owner asks the trademark office to examine and issue a proper trademark certificate within three years of the date upon which the law becomes effective. During their interview with DVB, Adcock and Vachanavuttivong said that foreign companies can potentially strengthen their claim to a certain trademark if a dispute arises by publishing a "cautionary notice" in a daily newspaper to notify the public of the company's trademark rights. Publishing such a notice is advised in order to further inform the public that a trademark has been declared as owned, and that any unauthorized use of that trademark could amount to infringement. Adcock and Vachanavuttivong also made sure to emphasise that if a dispute arises over the ownership of a trademark, foreign companies can file lawsuits in Burmese courts and actually have a good chance of winning. The problem with resorting to litigation, however, is that court cases in Burma can be very lengthy and the outcome can be uncertain—not to mention the fact that even if a judgment is obtained it might be difficult to enforce. Ramirez explains that foreign investors usually aren't willing to bear these risks, so they often wind up settling with alleged infringers instead of going to court. "The reality is [that Burma's] judicial system is uncertain and it's very lengthy—not unlike Thailand, where it can take a great length of time before you get a final judgement after exhausting all levels of appeal—so you end up having someone who wants to enter the market, wants to clean up the issues with regard to possible infringement, and get moving. That usually means you have to engage the other entity and maybe even work out a settlement," said Ramirez. "Just because you don't happen to be first in Myanmar doesn't mean you are devoid of the opportunity to try to prove that you are indeed the brand owner. Of course, it can be complicated [to obtain a judgement from a Burmese court], and often times this results in legitimate brand owners having to deal with illegitimate users by purchasing rights or otherwise settling disputes— sometimes by licensing." On a positive note, Ramirez underscored that given the government's desire to attract foreign investment, trademark infringement will become "less and less common, because it isn't good for international investment [for the government or judicial system] to support this kind of illicit use of brands". At the moment, however, it seems that foreign investors are still willing to enter Burma's potentially lucrative market despite the lack of a comprehensive trademark regime—particularly Asian investors from countries such as Thailand, which still hasn't given up its dream of accessing the Bay of Bengal by developing the long-delayed Dawei special economic zone and deep sea port. Although critics have said that Dawei only stands to benefit Thailand, one Thai banker who spoke with DVB on the condition of anonymity insisted the project will benefit all three countries involved—Burma, Japan and Thailand—and that it's only a matter of time before a syndicated loan is arranged to finance the ambitious project.

Bullet Points: 16 October 2014 Posted: 16 Oct 2014 04:28 AM PDT On today's edition of Bullet Points: Five reporters sentenced to two year prison terms for sedition. Burmese army warns Kachin villagers of upcoming maneuvers. President Thein Sein arrives in Italy. Mon women seek to form Burma’s first women only party You can watch Bullet Points every weeknight on DVB TV after the 7 o'clock news.

Ethnic alliance calls on Burmese army to cease assaults Posted: 16 Oct 2014 04:10 AM PDT The United Nationalities Federal Council (UNFC) has released a statement expressing concerns over a renewed offensive by Burmese government forces against ethnic armed groups in Kachin, Shan and Karen states, and has called on Naypyidaw to halt their assaults. Nai Hongsa, deputy-chairperson of the UNFC ethnic bloc, said, "It is vital that these abrupt hostilities are halted as soon as possible, otherwise conflict will grow and cause negative impacts on the ongoing peace process. "It will be hard for us to regain momentum in the ceasefire talks if peace is disrupted – we would like to urge everyone to forgive one another." He said the recent attacks by the Burmese army against ethnic armed groups were unprovoked and that the UNFC does not endorse use of military force to resolve problems. The UNFC statement urged the government to find a solution and to bring about peace via roundtable dialogue. Fighting broke out between the Shan State Army-North (SSA-N) and Burmese government forces in Ta Pha Saung, an area located in Shan State's Kaese Township, on 2 October. At least five battles between opposing units took place, according to SSA-N spokesperson Col. Khun Sai. Then, on 26 September, a fire-fight broke out in Kyaikmayaw, Mon State, between the Democratic Karen Benevolent Army (DKBA) and Burmese government forces, leaving one soldier reportedly injured. The clashes – sometimes sporadic, at other times indicative of territory gains – come at a time when the Burmese government's calls for a nationwide ceasefire agreement appear to be coming to a decisive stage. Related Stories Karen refugees pushed back from Thailand Wa, Mongla rebels say Burmese army undermining peace process Karen delegates hold closed-door talks with government

Journalists sentenced to 2 years for sedition Posted: 16 Oct 2014 03:08 AM PDT Five staff members of the now defunct Bi-Mon Te Nay weekly news journal have been found guilty of sedition charges and sentenced to two years each in prison by Rangoon's Pabedan Township Court. Kyaw Win, a defence lawyer for the five – two editors, one reporter and two publishers – said the court on Thursday found them guilty for "defamation of the state" under *Article 505(b) of the penal code. "They were given the maximum sentence under Article 505(b) – two years each in prison," he said. The charges were levied after Bi-Mon Te Nay (literally Bi-Midday Sun news journal) published a report in July repeating an activist group's claims that Burmese opposition leader Aung San Suu Kyi had teamed up with several ethnic politicians to form an interim government. Kyaw Win said the defence team had previously appealed for the five defendants to be charged under the Media Law, but the motion was denied. He said they are now preparing to appeal to a higher court. Zaw Thet Htwe, a news editor and spokesperson for Burma's Interim Press Council, said he was frustrated to hear the verdict. "The sentencing of Bi-Mon Te Nay staffers indicates a lack of communication and coordination between the country's three estates, and it gives me the impression that the judicial sector is not very fond of the media," he said. Related Stories Unity journalists' sentences reduced on appeal Suu Kyi reiterates call for national reconciliation Burma’s fourth estate meet in Rangoon The Bi-Mon Te Nay staff were initially charged under articles 5(d) and 5(j) of the 1950 Emergency Provisions Act: for causing public alarm and undermining security of the state. Those charges were dropped in favour of Article 505(b) in August. The news journal has suspended operations since the staff were indicted and equipment seized by the police. Activist Htin Kyaw of the Myanmar Democratic Current Force group was sentenced to one year in prison with hard labour in August for distributing leaflets claiming that Suu Kyi and several ethnic politicians had performed a coup in overthrowing the ruling government and forming their own interim government. He and co-defendant Naung Naung on Wednesday appeared in Kyauktada Township Court where they were facing further charges. *Burmese penal code Article 505(b): “Intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquillity.”

Seven Kanbalu plough protestors released from jail Posted: 15 Oct 2014 10:21 PM PDT Seven farmers from Kanbalu in Sagaing Division, jailed for staging plough protests on confiscated land, were released from prison on Wednesday after serving their full three-month sentences. But while seven walked free from Shwebo Prison, dozens remain behind bars. A total of 57 [some reports say 56] protestors were originally charged under various crimes including trespassing and vandalism. The farmers were arrested for conducting a plough protest earlier this year, an increasingly popular form of non-violent protest whereby farmers attempt to till or cultivate lands which they claim were seized from them, mostly by the military during the 1990s. Of the 57 jailed for the March protests in Kanbalu, some received three-month sentences while others were handed two-year jail terms. At least 20 were transferred to prisons far from their homes. Related Stories Keep fighting, jailed student tells Latpadaung protestors Michaungkan activists ordered to leave park by 3 Oct Monywa students protest Education Bill "Seven farmers from the group of 56 jailed in July have been released from Shwebo Prison," said supporter Than Htike from Hkaohnta village. "Some of the defendants are still serving terms for additional charges." Another supporter of the plough protestors, who asked not to be named, said that more than 200 local villagers and supporters are facing charges on similar grounds. "In total, 226 villagers from the region – including Yemaw, Htantabin, Bugone, Htaukyaai, Pyegyi, Hkaohnta and Ngatpyawdine villages – are facing trials for staging plough protests and demanding the government intervene in their land disputes ahead of growing season," she said. Some 173 villagers from Hkaohnta are scheduled to appear at a court hearing on 28 October for trespassing and vandalism charges, she said. Over 10,000 acres of land in Kanbalu were allegedly confiscated by the Burmese military in 1991.

Unity or disunity – are Karen groups joining forces? Posted: 15 Oct 2014 08:30 PM PDT A statement purporting to be jointly signed by all the major Karen armed groups claims that the Karen National Union (KNU) has agreed to reunify forces with old foes the Karen Peace Council (KPC) and the Democratic Karen Benevolent Army (DKBA) in the face of intimidation and attacks by the Burmese army. Dated 13 October and supposedly signed by representatives of the KNU, KPC, DKBA and Karen National Defence Organisation (KNDO), the joint statement says the respective groups have "unanimously reunified as the Kawthoolei Armed Forces, or KAF". "The Burma military (Tatmadaw) troops have been intimidating, disarming and attacking, on flimsy excuses, the ethnic armed organisations, which have signed ceasefire agreement[s] with the government, and arresting the personnel of the ethnic armed organisations and the innocent civilians, on a wide scale," the statement read. "Though the peace process has been going on for over three years, instead of achieving the expected progress, we plainly see that the Burma Army has been doing trust-wrecking activities." The newly formed KAF said it will "carry on the struggle in cooperation with forces at home and abroad, until the emergence of lasting peace and a democratic federal union, and the achievement of victory." The joint-statement appeared to carry the signatures of the vice commander-in-chief and commander-in-chief of the KNU armed wings Karen National Liberation Army (KNLA) and KNDO, respectively, although no names were specified. The DKBA's commander-in-chief Maj-Gen Saw La Bwe and KPC strategic commander Col Tiger are listed as co-signatories. DVB has been unable to confirm if the statement is endorsed by all leadership arms of the armed groups mentioned. The KNU has shown cracks in its leadership in recent months; at a meeting of the United Nationalities Federal Council (UNFC) on 31 August, delegates were stunned when several KNU representatives, led by Commander-in-chief Mutu Say Poe, walked out of the conference, complaining about the lack of independence for each party within the ethnic bloc. Related Stories Karen refugees pushed back from Thailand DKBA denies responsibility for deadly mortar attack Myawaddy residents told to take down Karen flags The following day, KNU Vice-chairperson Naw Zipporah Sein – who had also attended the summit, but who did not join the KNU faction that walked out – wrote to the UNFC apologising for the group's behaviour and promised that the KNU will resolve the issues among themselves. Speaking to DVB on Tuesday, Zipporah Sein said the KNU is implementing a policy to reunify all Karen ethnic armed groups that was laid down at its 15th congress, but refused to comment any further. "The KNU congress laid out a policy to reunify all Karen armed groups, and that policy is being implemented," she said. However, KPC [also referred to as: KNU/KNLA-Peace Council] senior commander Saw Naga Lay said the group did not acknowledge the statement and that it did not reflect the opinion of their leadership. "We do not know who posted this statement on the internet – we have never floated such an idea, and did not approve anything like that," he said. On 28 May, various Karen militias formed a committee to negotiate a potential unification of Karen armed groups. Col Nerdah Mya, commander-in-chief of the KNDO, said the issue of the KAF statement will be discussed at the committee's upcoming meeting. "Whether DKBA or Peace Council or KNLA – it is necessary for all of us to have a unified Kawthoolei Army," he said. "We believe that there should ultimately be only one Karen army.

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