SRI LANKA Law and Practice Contributed by: Anomi Wanigasekera, Sabeera Shariff and Saambavi Siththananthan, Julius & Creasy
False Application of a Mark and Related Offences Section 186 (1)(b) identifies the provisions pertaining to the false application of a mark or any other mark nearly resembling an existing mark. The prosecutor is required to establish the existence of a valid mark and the forgery of such mark by the accused. 6. Assignments and Licensing 6.1 Assignment Requirements and Restrictions Procedures, requirements or restrictions apply to assigning a trade mark and copyright. Trade Marks An assignment or transmission must be made in writ - ing and signed by or on behalf of the contracting par - ties. Any person becoming entitled by assignment or trans - mission to an application for the registration of a mark, or to the registration of a mark, may, according to Sec - tion 123 (3) of the IP Act, apply to the Director-General in the prescribed manner to have such assignment or transmission recorded in the register of marks. Assignment or transmission has no effect against third parties unless it is properly recorded in the register of marks. Copyright Economic rights In Sri Lanka, every such assignment or transfer of eco - nomic rights must be in writing, signed by the parties. (See Section 16 (2).) Also, an assignment or transfer in whole or in part of any economic right must not include or be deemed to include in the assignment or transfer in respect of any other rights not expressly referred to therein. Moral rights Moral rights are not transmissible during the life of the author; therefore, they cannot be either assigned or transferred. However, the right to exercise any of the
Upon application made to it before the day first fixed for pretrial conference of the action, in the presence of or after reasonable notice to all the parties to the action, the court shall have full power of amending, in its discretion, all pleadings in the action, by way of addition, alteration or omission. On or after the day first fixed for pretrial conference of the action and before final judgment, no application for the amendment of any pleadings shall be allowed unless the court is satisfied, for reasons to be record - ed by the court, that grave and irremediable injustice will be caused if such amendment is not permitted, on no other ground, and that the party so applying has not been guilty of laches. 5.7 Combining Revocation/Cancellation and Infringement Revocation/cancellation are regular actions and are inter parte. Generally, infringement matters are coupled with ex parte interim relief being sought. Court actions take four to five years. 5.8 Measures to Address Fraud Forgery of a Mark Wherever there is evidence that the accused forged the mark of another registered owner, the offence is made out. There should be positive evidence that the act of forgery was committed by the accused. It may be relevant to consider the provisions of Sec - tion 190 of the IP Act at this point. This section is extremely helpful in identifying the circumstances where a mark is deemed to be forged. Lack of assent of the owner of the mark makes that mark, or a mark so nearly resembling that mark, as likely to mislead, or falsifies any genuine mark, wheth - er by alteration, addition, effacement or otherwise; any mark so made or falsified is in this respect referred to as a forged mark. In any prosecution for forging a mark, the burden of proving the assent of the owner shall lie on the accused.
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