MOC Issues Trademark Registration Order No.63/2020 Directing Trademark Owners to Register Trademarks

On 28 August 2020, the Ministry of Commerce ("MOC") issued Order No. 63/2020 ("Order") directing all Trademark Owners to apply for trademark registration. A "Trademark Owner" is defined under Section 93(a) of the Trademark Law 2019 as an owner of a mark which is registered at the Office of the Registration of Deeds, or an owner of a mark which is not registered but is actually in use in the Myanmar market. The Order requires such Trademark Owners to apply for trademark registration starting from 1 October 2020 as the Government seeks to transition from the current First to Use System to a First to File System.

Under the Trademark Law, Trademark Owners, regardless of whether their marks had been previously registered under the old regime (i.e. by filing a declaration of ownership), are entitled to enjoy a right of priority for a period of time to register their marks for goods or services under the new registration system if the marks are actually in use in the Myanmar market. This period of time is now defined under the Order as starting from 1 October 2020 up to the official commencement filing date of all trademarks (such date to be announced by the Government). Trademark Owners may submit trademark registration applications from 1 October 2020 onwards, and such applications will be regarded as applications filed on the official commencement filing date once it has been announced by the Government.

The Trademark registration process can either be undertaken by service companies and law firms assisting Trademark Owners, or by Trademark Owners themselves by way of the online registration system as stipulated by the Department of Consumer Affairs of MOC. The application shall include the necessary supporting information and documents to show that the Trademark (i) has already been registered with the Deeds Registration Office ("DRO") (i.e. by the filing of a declaration of ownership), or (ii) is an unregistered trademark but which has been exclusively used by the applicant in the Myanmar market up to the date of the application. The relevant supporting documents include:

1. the declaration of ownership of the Trademark as registered at DRO (registered Trademarks);
2. a certified true copy of the registration certificate from DRO (registered Trademarks);
3. proof of a public announcement in a government newspaper (registered Trademarks);
4. proof of use in the Myanmar market (registered and unregistered Trademarks);
5. proof of advertisement in the context of a marketing or sales promotion (registered and unregistered Trademarks);
6. tax receipt or other receipt for expenses;
7. if the applicant is not the same as the trademark owner registered at DRO, proof of transfer of ownership or name change (registered Trademarks); and
8. any other documents as may be required by the Intellectual Property Division of MOC.

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Union Tax Law of 2020 Takes Effect on 1 October 2020

The Union Parliament has enacted the 2020 Union Tax Law ("2020 UTL") clarifying tax rates and procedures concerning income tax, specific goods tax, and commercial tax. The law took effect on 1 October 2020, being the start of the new financial year in Myanmar. Some of the key features of the 2020 UTL are summarised as follow:

1. Gradual increase in Income Tax Amnesty for undisclosed income – The key feature of the 2020 UTL is the modification of the income tax amnesty for persons with undisclosed income. The tax amnesty, which was introduced in the 2019 Union Tax Law and intended to be granted for a year to encourage persons with undisclosed income to settle their tax liabilities, has been subject to a gradual increase in the 2020 UTL.
2. Specific Goods Tax ("SGT") – The 2020 UTL also increases the tax rates for cigarettes, alcohol, and wine. Additionally, the new law imposes an obligation for SGT to be calculated on the basis of landed cost.
3. Commercial Tax ("CT") – The 2020 UTL does not make any changes to the CT rates. In respect to exempted goods, it amends certain provisions, particularly removing creamer and milk substitute products not produced from dairy animals from exempted food products. Furthermore, the law clarifies that CT must be repaid if the goods are not imported within the prescribed timeframe and used domestically, in relation to goods imported under the Temporary Admission system and Drawback system.
4. Gemstone Tax and Income Tax – There are no changes to the Gemstone Tax, Corporate Income Tax, and Personal Income Tax made by the 2020 UTL.

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E-Filing System and E-Payment Platforms for Taxpayers

The Internal Revenue Department of Myanmar ("IRD") introduced a pilot stage e-filing system for all taxpayers, officially posting the submission process on the official website on 8 September 2020. This system at this stage will enable taxpayers to submit relevant tax returns including those pertaining to Commercial Tax, Capital Gains Tax and Specific Goods Tax. E-filings for Personal Income Tax and Corporate Income Tax have yet to be introduced.

Under the e-filing system, the taxpayer will be required to register through the IRD website, following which he will receive an approval email from IRD upon confirmation. Once registered, the taxpayer can file tax returns online by providing the required information including the Taxpayer Identification Number, registered tax office, email and password.

The use of the e-filing system is not yet mandatory for all taxpayers, but IRD is encouraging its use to streamline filings amid COVID-19. This is also in line with the e-Payment System, the use of which became mandatory on 1 October 2020.

In terms of developments regarding the e-Payment System, IRD has expanded the available platforms for which payment can be made. These include m-Banking, e-banking, i-banking and mobile payment systems. These payment platforms are available to the taxpayers with a valid Taxpayer Identification Number.

Currently, online tax payments do not apply to Personal Income Tax. IRD will announce in due course the availability of the online Personal Income Tax payment system once the system is in place. 

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E-Commerce Operation Guidelines (Draft)

A draft of the E-Commerce Operation Guidelines ("Guidelines") is being formulated by the Trade Department ("Department") of the Ministry of Commerce ("MOC"). The Guidelines seek to regulate and promote the development of e-commerce transactions as well as safeguard the interests and rights of consumers. It differentiates three categories of entities as follows:

1. Platform Operators ("PO") – entities that manage a virtual place or a cyberspace eligible for e-commerce operations to be conducted;
2. E-commerce Operators ("EO") – entities that sell goods or provide services to consumers by way of utilising a platform run by POs; and
3. Other Operators ("OO") – entities that sell goods or provide services to consumers through their own websites.

The Guidelines seek to establish certain regulations for these entities, and they are summarised as follows:

1. Licencing – For entities seeking to conduct e-commerce operations to acquire a business licence, and providing the licence holder with the opportunity to register voluntarily at the department to avail themselves of certain incentives;
2. PO duties – For POs to investigate whether restricted items are being sold on their platform, and to provide 60 days’ advance notice when they seek the closure of a certain platform;
3. EO conditions – For EOs to comply with key conditions, including but not limited to properly delivering goods, complying with existing laws and regulations, issuing e-invoices, etc.;
4. Contract – For an electronic contract to be entered into where e-commerce operations are being carried out;
5. Information disclosure – For EOs to provide transparent information on their businesses such as categories, quality and price of goods, payment-related information, and fund transfer conditions;
6. Data Protection – For EOs to respect the privacy of all consumers and to abide by applicable privacy laws;
7. ,Dispute Resolution – For injuries and damages arising out of e-commerce transactions to be appropriately redressed in accordance with the Consumer Protection Law of 2019; and
8. Existing Legislation – For existing legislation such as the Consumer Protection Law, Telecommunications Law, Electronic Transaction Law, and others to be applicable when conducting e-commerce operations.

The finalised Guidelines is expected to be issued later this year.

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