Impaired Intellectual Property Rights in Bangladesh

A.B.M. Shamsud DoulahbrWE all know well that for the remedial treatment of his or her complex neurological problems, no patient should go first to a general physician. But unlike many countries of the world including some of our neighbours, it has been happening in Bangladesh, at least in the realm of law. This becomes evident when the question of judicial orders related to and enforcement of the same in respect of the Intellectual Property laws (which broadly includes Trademarks, Copyrights, Patents, Designs, and Computer etc.) comes up. All matters related to Intellectual Property law are handled in Bangladesh by 'general' judges only. The following words will justify the needs of special Intellectual Property Courts.brRecently one retired District Judge, who is my next door neighbour, explicitly admitted during friendly discussions that he does not know anything about the Intellectual Property laws of Bangladesh as well as such international conventions and regimes to which Bangladesh is a signatory. brBut during his service he had the responsibility of hearing the cases related to Intellectual Property matters, such as trademarks, copyrights, patents, designs, computer software etc. Fortunately, the said retired district judge confirmed that he himself never handled any such intellectual property-related cases.brIn Bangladesh the primary jurisdiction of hearing the Intellectual Property (IP) matters is the district judge. Often the district judge transfers the IP cases to the additional district judges. Now, as it is contemplated in the new Trademark Ordinance 2008, considering more filings of Intellectual Property cases, such matters may also be transferred to the joint district judges (who were until recent years known as Sub-Judges). Appeals against the orders of the district courts are made in the High Court Division of the Supreme Court of Bangladesh and further appeals go to the Appellate Division of the Supreme Court.brThe courts concerned with the Intellectual Property law are expected to have at least some good knowledge of the respective Intellectual Property laws (both national and international) and also of the making and shaping of the Intellectual Properties, which are mostly concerned with artistic works; invented words and devices; designs; photographs, films and paintings; various scientific fundamentals and inventions; paper, printing and graphic arts and computer software and related devices etc. This scribe is not aware of any court in the People's Republic of Bangladesh that has the knowledge and understanding of all these subjects. How can somebody have such knowledge and understanding without having specialised training and experience in those areas Of course, the present writer would like to note here with satisfaction that in the recent years Intellectual Property laws have been included in the syllabus of various law courses at the university level. But we do not have any specialised and exclusive courses on Intellectual Property laws and practice available in Bangladesh.brIn the circumstances, administration of fair justice in respect of the Intellectual Property matters has continuously become very weak and seemingly defective in Bangladesh. It is widely accepted that 'delay denies justice'. But in Bangladesh it is not applicable, excepting in some political matters. In the areas of Intellectual Property matters, it is sad to say that sometimes it takes about a decade or more for disposal. It so happens because these matters do not get proper handling in absence of properly trained and experienced judges.brIt is most surprising that in Bangladesh there are some judges with training and experience in the Intellectual Property matters, but they do not have the exclusive jurisdiction of handling such matters. In addition, more surprising is the fact that the process of computerisation is not yet adopted in the sphere of judiciary - not even the Daily Cause List is computerised and circulated through the Internet.brEven at the High Court level, we find that often a 'stay order' is issued giving opportunity to the infringers and counterfeiters to continue their infringing and counterfeiting activities. Such 'stay orders' are passed in the line of normal real estate disputes and not keeping in mind the nature and values of the Intellectual Property matters, for which there are special laws. In all Intellectual Property cases, time is a major factor in upholding the rights and interests of the owners of the Intellectual Property concerned in respect of trademarks, copyrights, patents, designs, and computer etc.brWhat is more surprising is that the respective interested parties take the advantage of such 'stay order' from the court, which perhaps is misled or is without better and wider understanding of the Intellectual Property matter concerned. We know very well that the many appeals in the High Court Division have been ending for four to five years. Such inordinate delay never takes place in any court in any other law-abiding country. Of course, it may be stated in this connection that there are pragmatic judgements by the higher courts of Bangladesh on the stay of operation of judgement or order by the Appellate Court. Justice Gour Gopal Saha of the High Court Division said in his judgement [See 6 MLR (Mainstream Law Reports) (HC) 2001] that mere filing of an appeal does not give the appellant any right to get the operation of the impugned judgement, order or proceedings stayed till the disposal of the appeal. The appellate court may in its discretion grant such a relief only for a sufficient cause. He also pointed out that in the absence of compelling reasons, the stay of operation of the impugned order of temporary injunction is not contemplated in law.brIt is importantly notable that in the said judgement, Justice Gour Gopal Saha saidbrit is well settled that mere filing of an appeal does not by itself give any right to the appellant to get an order of stay of the operation of the impugned order or judgement and it is more so in a case of injunction. If the operation of the impugned order of temporary injunction is stayed till the disposal of the appeal, it simply means that there was no order of injunction against the appellant, which not only sets at naught the order passed by the trial Court but virtually gives the appellant the final relief of the appeal pending adjudication. In the absence of a very exceptional case and that of preventing an apparent injustice or abuse of the process of the Court, the operation of the impugned order of injunction pending decision in the appeal is not clearly contemplated in law. ...brConsidering the above facts and circumstances and in consideration of the fact that there are so many Intellectual Property (IP) disputes in the country, many involving the foreign countries, it has become necessary that there should be exclusive Intellectual Property courts both in the District Judges' Court level and in the High Court Division level. If needed some allied matters like Customs and Company matters may also be included in the jurisdiction of such courts. Such practice is already there, to some extent, in the High Court Division. But there should be more specific application of such principles.brWhen we point out the above as to the necessity of having specialised training, and experience in the Intellectual Property laws and of having some knowledge concerned with artistic works; invented words and devices designs; photographs, films and paintings; various scientific fundamentals and inventions; paper, printing and graphic arts and computer software and related devices etc., for the judges handling the IP matters, we may keep note of the fact that Bangladesh is an active signatory to various international conventions related to the Intellectual Property matters. The following may give a very brief idea about our Intellectual Property laws as well as various such conventions regimes.brBangladesh is a party to the convention establishing the World Intellectual Property Organisation (WIPO) on January 01, 1987. In addition, Bangladesh is also a party to the Universal Copyright Convention Berne Convention for the Protection of Literary and Artistic Works (Paris 1971) and The Paris Convention for the Protection of Industrial Property of March 20, 1883. In Bangladesh, the laws governing the Intellectual Property matters are A. The Patents and Designs Act, 1911 B. The Trade Marks Ordinance, 2008; and C. The Copyright Act, 2000. In addition, there are several penal laws against the violations of various Intellectual Property Rights in 'The Penal Code of Bangladesh'.brMoreover, Bangladesh is a party to the General Agreement on Tariffs and Trade, 1994 (GATT ) which includes Trade - Related Aspects of Intellectual Property Rights ( TRIPS) and, as such, makes her a member of the World Trade Organisation ( WTO ) family.brTherefore, for the sake of fair justice and scientific resolution, it is important that Bangladesh should immediately start Intellectual Property and Commercial Law Courts, at least, initially in Dhaka, Chittagong, Rajshahi and Khulna covering the whole of Bangladesh, particularly in consideration of increased number of Intellectual Property and related matters as well as considering the fact that Bangladesh territory is being used for marketing and sales of massive passing-off of goods, and for manufacturing and producing goods by counterfeiting and infringements, causing huge damage to the common customers and internationally lowering the business and commercial reputation of Bangladesh. brThe writer is Advocate, Supreme Court of Bangladesh