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In Myanmar, the process of invalidation and cancellation of a registered industrial design involves the legal mechanisms through which the rights associated with a registered design can be challenged or revoked. Industrial designs are vital for protecting the aesthetic and ornamental aspects of a product, ensuring creators and innovators can safeguard their unique visual creations.
“Invalidation” refers to the procedure through which an interested party seeks to challenge the validity of a registered industrial design. This could be due to various reasons, such as prior existing rights, lack of novelty, or failure to meet the necessary requirements for design registration. The invalidation process typically involves submitting evidence and arguments to a relevant authority, demonstrating why the registered design should no longer be considered valid.
“Cancellation”, on the other hand, pertains to the voluntary or involuntary removal of a registered industrial design from the official records. This can occur when the design owner no longer wishes to maintain the design registration or fails to comply with renewal requirements. Cancellation proceedings may also be initiated by third parties under specific circumstances.
1.1 Application for Invalidation Announcement or Cancellation: Any relevant individual or legally established entity has the right to request the Registrar to initiate an invalidation announcement or cancellation process for either the entirety or specific aspects of a registered industrial design, if it is determined to satisfy any of the criteria outlined in Section 1.2.
1.2 Grounds for Invalidation Announcement: The Registrar, upon receiving an application from a relevant individual or legally established entity, may proceed with an invalidation announcement concerning the entire registration or specific components of an industrial design, if the registered industrial design meets any of the following conditions:
(a) Ineligibility for protection in accordance with the provisions of Section 16.
(b) Lack of alignment with the definition specified in subsection (j) of Section 2.
(c) Absence of novelty or originality in the industrial design.
(d) Substantial evidence indicating that the registered industrial design's owner does not possess rightful entitlement to such design.
(e) Acquisition of industrial design registration through fraudulent means, misrepresentation, or omission of material information.
(f) Receipt of a conclusive decision or judgment from an intellectual property rights court pertaining to the invalidation announcement of a registered industrial design.
2.1 Grounds for Cancellation: The Registrar is empowered to expunge a registered industrial design from the records of registration under any of the subsequent circumstances:
(a) Failure to initiate an application for the extension of the registration term within the designated grace period of six months from the expiration date of the registration term.
(b) Voluntary relinquishment of ownership by the proprietor of the concerned industrial design.
(c) Public declaration of the industrial design's invalidity due to the fulfillment of one of the conditions as outlined in Section 1.2.
2.2 Notification and Public Announcement: Upon formal recording of the cancellation of a registered industrial design, the Registrar is obligated to promptly notify the proprietor of the affected industrial design. Furthermore, a public announcement shall be made through the prescribed means to disseminate this information to the general public.
By Nguyen Vu QUAN
Partner & IP Attorney
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