Myanmar non-profit civil societies with Myanmar citizens only as members (no foreign nationals allowed) are termed as Local Organization (Non-governmental organizations-NGOs). The members of NGOs shall be elected within 30-months from the date of registration. NGOs with at least 5 members have the right to own immovable assets and receive donations from foreign governments and other organizations.

With INGOs, Myanmar citizens can also be included as members. INGOs are treated as foreign entities registered in Myanmar. Such organizations (INGOs/NGOs) must not be commercial, political, or religious in nature.

There are no official statistics or complete directories on the list of INGOs/NGOs in this country. According to INGO Forum Myanmar, there are probably more than 110 INGO member organizations working on sustainable development projects in Myanmar.

Proposal for the MOU/Project

INGOs/NGOs which aid socio-economic development projects in Myanmar may submit any proposed project as well as a draft Memorandum of Understanding (“MOU”) or similar document in Myanmar and English version to the Ministry of National Planning and Economic Development (“MNPED”).

The MOU/Project Proposal involving Overall Framework/Multiple Sectors will be signed by the MNPED. INGO/NGOs must then seek the approval from the concerned Ministry before signing any sub-contract covered by the MOU/ Project Document.

 After getting recommendation letters and necessary approval from MNPED and Ministry of Foreign Affairs (“MOFA”), another step is to register the INGOs/NGOs with required forms.

Registration Steps of INGOs/NGOs

All INGO/NGOs shall officially register with the Ministry of Home Affairs (“MoHA”) and sign a basic cooperation agreement (MOU) with the Union of Myanmar concerning the proposed project. However, organizations (INGOs/NGOs) that pursue religious and economic activities, formed under the Political Parties Registration Law with the Union Elections Commission do not need to apply for Registration. INGOs/NGOs applying for the permit shall be consistent with Rule of Law, Security and existing laws of the State, Development of Social Sectors of the State.

According to the law relating to Registration of Associations 2014, the “responsible person” of INGOs/NGOs shall apply stipulated Form 1, Form 3, Form 4, Form 4A with an attachment of the Copy of NRC Card including the organization’s name, address, name of a responsible person, application for Registration Request, List of Executive Members of Association Organization and Curriculum Vitae of Executive Members of Association.

Firstly, the Union Registration Committee shall issue a temporary registration certificate to the applicant of INGOs/NGOs within 7 working days with effect from the date of application.  

 While INGOs/NGOs register with the Union Registration Committee, they need to pay MMK 100,000 (One Hundred Thousand MMK) as the registration fee and can implement their activities all over the country. Registration fees shall be MMK 30,000 (Thirty Thousand MMK) when INGOs/NGOs register with not only Region or State Committee, also Nay Pyi Taw Council Registration Committee within the Nay Pyi Taw Council vicinity.

If approved for registration, a registration certificate shall be issued within 90 working days. In the event of a denial of registration, the committee with adequate reasons for the denial shall notify in writing to the organization within 30 days.

After registration of the organization, the opening of the office will be allowed. INGO/NGOs are also required to inform the MNPED, MOFA, Ministry of Home Affairs and concerned Ministries the opening as well as closing time of their offices.

 When working in Myanmar, INGOs/NGOs will need a registration certificate for Visa applications (original needed), Travel authorizations, securing MOUs with other government ministries and confirming the organization’s status in funding applications to international donors. INGOs/NGOs shall provide monthly and quarterly reports to the MNPED as well as to the concerned Ministries of their activities and financial statements through the submission of their annual reports at the end of every year.

Renewal of registration and extension of Registration Certificate

An application for INGOs/NGOs Registration Certificate would have to be submitted to the Union Registration Committee in Nay Pyi Daw which is valid for 5 years. After 5 years, all locally registered organizations (NGOs) shall be renewed with no renewal fee.

Any registered international non-governmental organizations (INGOs) shall apply with the registration fee to extend their registration certificate once in every 5 years for an extension.  

When requesting renewal or extension, an association (INGO/NGO) will need to provide attachment of Copy or Original MOU, information about the achievement of its project and additional information, notably financial. As aforesaid, INGOs/NGOs require stipulated form (Form 2, Form 3, Form 4, Form 4A) with the attachment of Passport / NRC Card Copy, previous registration certificate.

Some INGOs supplement accounts and asset lists with information about tax exemption agreements, and their audit clearance/bankruptcy statement with the recommendation to the MNPED.  

INGOs that are not permitted to extend their registration shall have the right to appeal for extension within one hundred and twenty days (120) and NGOs can renew registration until sixty (60) days starting from the date of receiving a notification letter from respective registration committee by making necessary changes.

On a final point under this section, it is worth noting that there is no specific renewal fee amount as fee determination is dependent on the relevant Ministry.

Disbanding or changing of INGOs/NGOs

 When disbanding, changing names or changing physical address, INGOs/NGOs shall inform to the respective registration committee within seven (7) days. If the member(s) of an organization (INGOs/NGOs) voluntarily resigned (or) deceased or an organization wants to change its executive committee, it shall inform the respective registration committee by issuing the official letter within 7 days of the incident.

Taxation framework

INGOs are eligible for tax exemption and financial accounts but will need to register for reporting requirements with the Internal Revenue Department (IRD). According to section 5 of the Income Tax Law 1974, INGOs are not liable to pay any tax on income which is used for charitable purposes or social causes. All INGOs/NGOs are liable to deduct the withholding tax under the notification 41/2010 of Ministry of Finance and Revenue with reference to the provisions of Section-16(e) of Income Tax Law on payment settlement of license, Trademark and Patent, or payment for services and purchases of goods in the country, under a deed of contract, deed of agreement or any agreement by Co-operatives, Partnerships, Companies and Organizations.

Significance of the Development Assistance Policy

According to the Development Association Policy (“DAP”) 2018, INGOs/NGOs need to register officially with the Government of Myanmar through an MOU. The government encourages INGOs/NGOs to coordinate with Myanmar’s national development as the scope of DAP is limited to international Partner in Development (“PID”). The DAP Working Group including a broad range of government and PID representatives will be led by the Development Assistance Coordination Unit (“DACU”) and not limited to representation from both the INGO Forum and Local Resource Centre.

The DAP Working Group shall meet quarterly and shall be tasked with jointly monitoring adherence of all stakeholders to this DAP and improve the effectiveness of development cooperation. DACU has the final decision if agreements cannot be reached and hold final responsibility for revising the DAP as required. When any PID or government entity is found to be operating not following this DAP, they will be requested to meet with the DACU to discuss the reasons underpinning this divergence and agree upon a timely resolution.

DAP, therefore, builds more effective and inclusive partnerships with both the community of nations and to the good people of Myanmar.

Conclusion

Myanmar encourages benevolence and charitable institutions and the country is generally supportive and welcoming of any INGO/NGO community as long as there is a mutual benefit to society for both sides. The successful implementation of cooperation programs and projects should be systematically guided to achieve more effective and efficient outcomes.

If you are interested in registering a new INGO or an NGO in Myanmar or require assistance with renewal or cancellation of registration of your existing organization, do reach out to our legal team by emailing your inquiry to social@mravilaw.org.

#Myanmar #INGO #NGO #civilsociety #nongovernmentalorganisation #charity

More information on INGOs/NGOs in Myanmar is available from the following links:

Ministry of Home Affairs www.myanmarmoha.org

Ministry of Foreign Affairs www.mofa.gov.mm.com 

Ministry of Planning, Finance and Industry www.mopfi.gov.mm,  www.industry.gov.mm

Ministry of Social Welfare, Relief and Resettlement http://moswrr.gov.mm/ 

Ministry of Health and Sports www.mohs.gov.mm 

Ministry of Agriculture, Livestock and Irrigation www.moali.gov.mm 

Ministry of Education www.moe.gov.mm

INGO forum in Myanmar www.ingoforummyanmar.org 

The Union Parliament of Myanmar finally passed the Myanmar Trademark Law on 30th January 2019 (Law No. 3/2019). It will be enforced on a date to be stipulated in a Notification to be issued by the President of Myanmar. The government is currently working on the establishment of the administrative bodies and the implementing regulations to support the new system.

For the first time in Myanmar, legislation will pave the way for important provisions that increase the scope of protection for trademarks and provide for greater efficiencies in the trademark registration process.

About the Trademark

Trademark as the Marks under the new Myanmar Trademark Law 2019, means any visible mark, which includes names, letters, numbers, illustrated parts, or combinations of colors, or one such mark combined with another, to distinguish a particular product or service from other products or services.

The Trademark Law has established a new trademark system with the following major principles:

1. The Myanmar Department of Intellectual Property Office (“MDIP”) will be established under the Ministry of Commerce. MDIP will open the new e-filing so that law firms can file applications to register those trademarks that have been previously registered with the Office of Registration of Deeds (“ORD”).

The MDIP is implementing a ‘soft opening’ of the e-filing system starting with the registration of these existing trademarks, before moving to a full launch of the e-filing system in the middle of 2020, when new trademarks will be accepted for registration.

2.  The Central Intellectual Property Committee (“CIPC”) and the Intellectual Property Agency (“IPA”) will be established to issue and implement intellectual property policies in compliance with the principles and provisions of the IP-related treaties and conventions of which Myanmar is a member state.

3. The first-to-file system for trademark registration and protection will be adopted to bring Myanmar to be in line with other ASEAN countries.

4. Trademarks, service marks, collective marks, certification marks, geographical indications will be given protection. Well-known marks and trade names will also be protected.

5. A trademark application can be filed with the MIPO with or without a priority claim. A trademark examination and opposition proceedings will be handled by the MIPO.

6.  Registration of a mark is valid for ten years from the trademark application filing date and can be renewed every period of ten years. Trademark registration can be cancelled for non-use and it can be invalidated for non-register.

7. Each trademark already registered under the Registration Act 1908 or the Deeds Registration Law 2018 must be re-filed with the MIPO because the current trademark registration is not automatically recognized under the new Myanmar Trademark Law 2019.

Marks Not Eligible for Registration

According to Section (13) and (14) of the Myanmar Trademark Law 2019, any of the following characteristics of a mark constitutes absolute grounds for refusal and the mark will not be eligible for registration:

lack of distinctiveness;

containing only marks or indications of a good’s or service’s type;

may be detrimental to public order, reputation, beliefs, the Union’s reputation, or traditions valued by ethnic minorities;

becoming common usage in contemporary expressions or becoming a part of traditions and is becoming used practically in the commercial area;

concerning subsection (b), misleading the public or commercial area;

directly copying or imitating or misleading, without the approval of relevant authorities, all or part of a country’s flag, ceremonial appearance, other marks and symbols, a legal mark indicating the management or guarantee by a State, or a mark of quality guarantee, or a multilateral international organization’s ceremonial appearance, flags, or other marks, names, including the said organization’s acronyms, full name, or any part; or

use of marks and signs separately protected under the international agreements in which the Republic of the Union of Myanmar is a Party.

If any of the following applies to a mark, then it constitutes relative grounds for refusal and the mark is ineligible for registration:

if the mark misleads consumers through its use by being identical or like any other person’s registered mark or mark for which registration or right of priority has been applied for beforehand for identical or similar goods and services for said marks;

if it uses, without the consent of a relevant person or legally formed organization, a mark which may be harmful to the individual rights of any person or the name and reputation of a legally formed organization;

if it is a mark which may infringe upon the intellectual property rights of any other person;

if the registration of a mark is applied for without good faith;

if a mark registration application is made for a mark that misleads consumers by not only being identical or like a well-known mark but is also used in identical or similar goods or services; or

if a mark registration application is made for a mark that is identical or similar to a registered well-known mark but the goods or services are not identical or similar but may indicate that there is a connection between the owner of the well-known mark and the goods or services that the mark in question is being used for and such use may be harmful to the interests of the owner of the well-known mark.

Trademark Application

Section (17) of the Myanmar Trademark Law 2019 requires the following for a trademark application:

• The application of registration request in the form;
• The name and address of the applicant or legal entity;
• Name, NRC No. and address of the representative if the application is filed by a representative;
• A clear description of the mark; and
• Names and class of the goods or services according to the international classification or names and types of goods or services.

Additionally, the following should be provided where applicable:

• The registration number, type, and jurisdiction of origin if the applicant is a legal entity;
• If the applicant requests a priority right: submission of a priority right request together with proof and a description showing the existence of the priority right;
• If the applicant requests a priority right relating to an exhibition: submission of a priority right relating to an exhibition request, together with proof and a description showing the existence of the priority right relating to an exhibition;
• If the mark had been registered previously at the Registration of Deeds office: proof of such registration; and
• Other requirements specified by the Agency and the Department from time to time.

Terms of Registration and Renewing a Trademark

The registered trademark is 10 years from the date of application. After this expiration of the registration, the trademark holder can be renewed for another 10 years at a time.  

Geographical Indication

According to Section 53 of the Myanmar Trademark Law 2019, any legally formed organization or representing persons from the relevant area may apply the registration of the geographical indications where the related goods are produced, following stipulations.

International Registration System

A person who wishes to register a mark using the international registration system may apply to the Registrar from within Myanmar or abroad, following stipulations.

Rights of Registered Marks

The owner of a mark complies with this Law, he shall enjoy the registered mark-related rights is an exclusive right, to prevent use by any other person, without his consent in the course of trade for identical or similar goods or services if such use misleads the public. The rights of a registered mark may be transferred or licensed. And the right to pursue criminal action, civil action or both against those who infringe on the rights relating to a registered mark.

Soft-Opening Launch to re-file the Existing Trademark

The electronic system for new applications for trademark registration is not yet available and interested parties can still use the old system requiring lodgement of a Declaration of Ownership. Existing registrants under the current system and owners of marks that have been put to use in Myanmar (regardless of whether having registered the mark) will be entitled to re-file their marks during a 6-month transitional period known as Soft Opening to ensure that prior rights are not lost. During this period, no new trademark will be received for registration under the new system.

It is important to note that re-filing is not an automated process and further fees will be applied. Documents required for re-filing existing trademarks include: (a) a legalised Power of Attorney, (b) the Declaration of Ownership documentation used for registration under the old system and (c) caution notice/s, if any were published.

Conclusion

Brand owners have every reason to be excited about these new developments and are awaiting eagerly for systems and processes to be finalised. Once in place, analysts are confident that many more world known brands will make entry into Myanmar a serious consideration. This which will eventually lead to greater prosperity for the country.

If you are interested in registering, protecting or enforcing your trademarks in Myanmar, do reach out to our legal team by emailing your enquiry to social@mravilaw.org.

#Myanmar #Trademark #IntellectualProperty

There are thousands of purely e-commerce businesses online in Myanmar that operate through various marketplace platforms and social media sites such as Facebook. It is believed that the numbers grow by the day and though the government is supportive of such ventures and understands its importance in the livelihood of many, it is also intent on ensuring these operate legitimately under the auspices of Myanmar company law and that consumer interests are protected.

There is a growing concern about the rise in counterfeit and defective products. There are also difficulties in the traceability of the sellers and at times, it is unclear if profits and incomes of these businesses are properly declared for taxation purposes.

The Ministry of Commerce operates the Voluntary E-Commerce (OnlineShop) platform. This supports the development of e-commerce operations in Myanmar, promotes the trust between online traders and consumers, and enacts the necessary legal framework for the e-commerce framework. Under Goal No.5, “Promoting innovative products and platforms of COVID-19 Economic Relief Plan”, the Under goal 5, the Myanmar Government proposes to: 

1. Promote the use of mobile payment services, bank transfers, or card payments for e-commerce sales.
2. Encourage retail businesses to use e-commerce and social commerce systems.

By registering with the Ministry of Commerce, such entities will be formally endorsed.

Requirements for Registration

To register as an e-commerce entity with the Ministry of Commerce, companies must:

1. Be a registered company for conducting business under Myanmar company law.
2. Be an online shop business and be registered as a “.com” or “.com.mm” under the legal Domain Name/Sub Domain Name. 
3. Be trading in local goods and/or services online.
4. Be already approved form the relevant departments for trading the commodities and services. 
5. Be where the business owner/s obeys the rules and procedures under the consumer protection laws of the country and if any breaches affect the consumer, the business owner/s agree to settle in collaboration with the relevant organizations.

Facts and Conditions for Registered Companies

Companies registered with the Ministry of Commerce for operating an e-commerce business and owners of marketplace platforms shall abide by the following conditions:

1. The term of registration is 5 years and may be renewed before 3 months of expiration.
2. That it shall operate the business following the existing laws, procedures, and directives.
3. That it shall cooperate technically to describe its certified business license logo on the relevant website/platform.
4. Private marketplace platform owners shall also require all sellers who operate on their platforms to display or mention all the necessary certifications or requirements as stipulated by company law and by the Ministry.
5. That it shall have accountability and settle any disputes between it and its customers.
6. That online games, gambling affairs, trade using Bitcoin, Digital Money, selling illegal shares and selling commodities that are restricted to be sold and imported under relevant laws will strictly not be allowed to operate.
7. That private marketplace platform owners will undertake to update lists of online sellers which shall be sent to the Ministry once every 6 months.
8. That the private and confidential information of its customers shall be protected for data privacy and will not be used for any other purposes than for the e-commerce transaction.
9. That rules including e-Commerce Guidelines (2020) issued by the Ministry of Commerce shall be fully complied with.

Registration Facts

The Ministry of Commerce, Department of Trade will take full responsibility for the registration of e-Commerce/Online Shop. It will examine the facts which the business owner declared during the application process and then examine whether the business is performing at the submitted Website URL.

It will examine whether the company registration and export/import registrations are satisfied within the necessary systems and check to see whether the e-commerce entity has abided by any administrative guidelines specified by any other relevant Departments.

The registration process will be simplified and will be easily done via an online application method. The government intends to add a module on the existing Myanmar Tradenet Website and registration can be done without membership of Tradenet.

To encourage the registration of e-commerce businesses, it has been determined that the registration process will be completely free for the business owner. The business owner will simply need to fill facts in the application form when registering using a specific Application Form. Once the application details are verified and complete, the relevant Certificate will be issued.  

Business owners will then be able to link their certificates using a script file that can be used to display on their websites or social media sites. The whole objective of this exercise will be to increase transparency and importantly to promote the trust of consumers. Separately, a form of Directory of all registered e-commerce businesses will also be officially available on either the www.commerce.gov.com  website or on the Myanmar Tradenet Website, or even on both.

Conclusion

E-commerce business owners who register judiciously under the new framework will benefit in many ways once the law is finalised. Not only will they gain the trust with their potential customers, should there be any misunderstanding or disputes, this can be fairly settled under the law. There will also be a potential to expand the reach of consumers overseas and transactions can be safely and legally conducted and traded.

Myanmar is intent on growing its reputation as a progressive digital economy. If you are considering setting up as an e-Commerce entity or are already operating as one, do reach out to our legal team by emailing your inquiry to social@mravilaw.org to see if we can help.

#Myanmar #eCommerce #OnlineShop

1. Name and interpretation
2. Objective
3. Formation of Central Committee and its duties
4. Formation of Regional Committee and its duties
5. Formation of Regional Committee and its duties
6. Stipulation of Industrial Zone
7. Establishment of Industrial Zone
8. Fund Raising, Maintenance and Use
9. Powers and duties of developer
10. Duties of investor
11. Land Use
12. Environmental Preservation
13. Levying of income tax on pay
14. Granting the rights of industrial enterprises
15. Managing the industrial zones to be operated successfully
16. Settlement of administrative disputes of industrial zone
17. Administrative Penalty and Appeal
18. Prohibitions
19. Penalties
20. Miscellaneous

The Government shall allocate the classification and standard of the industrial zones and announce with the notification. In establishing the industrial zone, the following features of land, percentage and ratio.

• For Industrial Area, from 60% to 70%
• For Commercial Area, from 1% to 5%
• For Public Utilities and Assistant Area, from 20% to 25%
• For Green Belt, from 9% to 10%

The developer shall receive the approval of Central Committee through the Regional Committee. After concluding the business operating agreement with the Regional Committee, the developer may implement the industrial zone, sublease the land and build the infrastructure in accord with the stipulations. The developer may conduct the maintenance of industrial zone with the supervision of Management Committee. The developer shall complete the construction project of the relevant industrial zone within proposed timeline. If the construction work is not completed within proposed timeline, shall submit the valid reason. If the reason is not valid, the permit shall be revoked in accord with regulations. He may develop the infrastructure himself or contract to other parties. If he provides the service relating to the infrastructure not only in the industrial zone but also outside area, shall comply with the stipulations of the relevant government departments. Regarding to environmental conservation, occupational safety, health and fire safety, shall comply with the relevant laws. The fees payable for land use and the permit shall pay to the Regional Committee as a lump-sum and installments according to the commercial contract concluded with the Regional Committee. Relating to bonded warehouse system within industrial zone, shall comply the custom laws and procedures.

The investor has the right to conduct the following investment businesses in accord with the stipulations.

1. Manufacturing of finished goods, related goods, packaging materials and value-added goods;
2. Transportation of raw materials and finished goods, maintenance and upgrading roads;
3. Other services relating to the investment business;
4. Domestic and international trade businesses of goods manufactured by the investment business

The investor also shall complete the construction project of the relevant industrial zone within proposed timeline. If the construction work is not completed within proposed timeline, shall submit the valid reason to the Management Committee. If the reason is not valid, the permit shall be revoked in accord with regulations.

The investor shall

• Register with the relevant departments in accord with existing laws;
• Implement the business in accord with stipulations of relevant departments and organizations;
• Submit the investment implementation status to the Management Committee;
• Comply with the relevant laws and regulations regarding to hazardous raw materials and products that do meet the standards;
• Comply with the existing laws and rules for the benefits of employees including appointment of employees, wages and overtime payment, leaves, holidays, occupational safety and health matters.

The investor shall comply with the standards of environmental conversation, in addition that shall comply with the laws for safeguarding occupational safety and health matters. Regarding with the commencement of business, locked-out and liquidation, the investor shall notify to the relevant departments and management committee. When the investor transfers the whole or part of the shares to his own business, company or the organization, shall notify to the relevant department and organization. The investor shall report the employment status of local and foreign employees to the Management Committee.

Land Use

The Regional Committee may allow the developer or investor to use the industrial land up to 50 years to implement the investment businesses and related businesses. The term may be extended up to two times for 10 consecutive years if they wish to extend after the previous 50 years expired.

Granting Benefits to Industrial Zones

The investor and the developer are allowed the temporary import of machinery and equipment to be used in initial construction in accord with the procedures of the Sea Customs Act. Import with Regional Committee’s recommendation shall be coordinated by the Ministry of Commerce.

If you are interested in learning more about Myanmar’s Industrial Zone Laws, do reach out to our legal team by emailing your enquiry to social@mravilaw.org.

#Myanmar #IndustrialZoneLaw #Zoning #LandUse