Myanmar's Consumer Protection Law tackles IP infringement
On 15 March 2019, the Parliament passed Law No. 9/2019 on the new Consumer Protection Law 2019 (“CPL”) which repeals the past Consumer Protection Law of 2014.
The aims of the new CPL are to promote and protect the interest of consumers and to clarify some of the uncertainties and ambiguities under the previous law. The CPL came into force on March 15, 2019 with the exception of the provision regarding the labeling of goods, which came into force a year on March 15, 2020. In this article we review how the labeling provision helps addressing IP infringement, especially trademark.
1. The CPL
The CPL defines consumer as a person who purchases, uses, lessees of goods and services for personal use or for other members of their households but not for trading. It provides legal definition and framework for consumer protection and contains 25 chapters and 84 sections, including:
rights and obligations of consumers;
obligations of entrepreneur;
mechanisms for resolving disputes between consumers and entrepreneur;
the role of the government and responsibilities of the Consumer Protection Commission, Consumer Affairs Department, Inspector, Consumer Affairs Committee for the protection of consumers’ interests;
improvement of the quality of goods and services, guarantee; and
claimable rights of the consumer on goods and services.
2. Labeling provision
The CPL contains mandatory labeling requirements (Chapter 18 of the CPL) for priority products as follows:
- Food and beverages: juice and jam, milk and dairy products, meat and meat products, eggs and egg products, canned food, edible oils, instant coffee and tea, instant noodles, ready-made food, chilled food, drinking water, seasoning products, chilli and other sauces, ready-made snacks, food supplements for babies, tobacco used in betel, cigarettes, liquors, packed foods.
- Household products: Household electronic products.
- Children items: Strollers, cradles, baby walkers, toys and accessories, baby hygiene products.
- Telecommunication equipment: Corded and cordless phones, mobile phones and accessories.
- Drugs and supplements: Household drugs (oral medication and application, lotions, ointments) which require no prescription, health supplements, traditional medicine.
- Chemicals: Agricultural fertilizers, insecticides and pesticides, chemicals used for food and drinks, consumer products and cosmetics.
- Cosmetics: Cosmetics (above 10g), cosmetics (under and equal 10g), hair treatment products.
- Toiletries: Toothpaste, soap (liquid, solid, powder).
- Other equipment: Agricultural equipment, fitness equipment.
All those goods must come with information showing the name, size, net weight, volume, date of manufacture, storage instruction, name and address of the manufacturer, name of the distributor, trademark, expiry date, side effects, adverse reactions and so on, and these must be written in the Myanmar language. Product label means the information or mark related to the goods described by the letter or printing or picture or by other means on the goods or packaging of goods The reason why the labeling provision took an extra one year to be effective is because the Government believes that entrepreneurs needed extra time to ensure their products including medicine, meet the labeling requirements, especially for those that are imported, as the labels need to be translated into Myanmar language.
The Product Labeling Notification 1/2018 and 1/2019 (“the Notifications”) issued by the Central Committee for Consumer Protection is available here.
The labeling provisions are relevant in the context of trademark infringement since counterfeit goods have either no labels or labels with untrue information.Under the labeling provisions, consumers are now allowed to file a complaint to the Office of the Consumer Affairs against such misleading and unfair practices. However, trademark owners are not allowed to bring such action.
Producing, importing, trading and selling of goods and services, which are not conformed to product labeling requirements or differ from their advertisement and promotion; or products that don't comply with their labeling requirement, the maximum term of imprisonment is two years and the maximum fine is MMK 20 Million (roughly USD 13,250). Civil remedies remain available in addition to any criminal penalties incurred.
3. Parallel imports & over labeling
Section 41(d) of the CPL provides for parallel importation by requiring that the Importer’s name and address, manufacturing enterprise’s name and address are on the goods' label. Over-labeling or re-packaging with sticker is also acceptable for the products produced in other countries which are intended to be imported into Myanmar. The specifications or restrictions for over-labeling with sticker are expected to be imposed by Myanmar Consumer Protection Commission (MCPC) with a directive at later stage.
4. Guarantees relating to goods and services
Product guarantees must include information on the acceptable, correct, and useable qualities of the product; natural transformation of goods; safety and product labels; spare parts; and the repair and exchange of goods. When providing services, guarantee information must be included (i.e., advance notice of the service and accurate descriptions of the service standards). An entrepreneur must provide the agreed-upon service value to the customer and complete the service within the guarantee period.
The CPL and labeling provision provide higher protection against trademark infringement and a strategic enforcement tool that IPRs owners should consider by cooperating closely with their customers and also consumers' associations. If they are fully and correctly implemented, they will achieve in making goods and services that are available to consumers safer, better quality and compliant with IPRs.