Intellectual Property Law in Bangladesh: An Overview
Introduction?
Intellectual Property (IP) law plays a vital role in the economic and cultural development of a nation. In Bangladesh, a country rich in culture and tradition, the protection of intellectual property rights is essential for fostering innovation, creativity, and economic growth. This article provides an overview of the intellectual property landscape in Bangladesh, discussing its legal framework, Infringement of Intellectual Property Rights, challenges, enforcement mechanisms, and the future of IP in the country.?
Historical Context?
The concept of intellectual property is relatively new in Bangladesh, emerging prominently after the country gained independence in 1971. The legal framework for IP has evolved significantly over the years, with the adoption of various laws and international treaties aimed at protecting intellectual property rights.?
Initially, Bangladesh inherited the intellectual property laws from Pakistan, which were based on British colonial law. The first significant legislative effort was the Patents and Designs Act of 1911, which was retained and adapted post-independence. The country also recognized the need for copyright protection, leading to the enactment of the Copyright Act in 2000.?
In the global context, Bangladesh is a member of several international organizations, including the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO). This membership has influenced the country’s IP policies and legislation, aligning them with international standards.?
Intellectual Property Rights??
The World Intellectual Property Organization (WIPO) provides that 'intellectual property' shall include rights relating to-?
a. Literary, artistic and scientific works??
b. Performances of performing artists, phonograms and broadcasts??
c. Inventions in all fields of human endeavor??
d. Scientific discoveries??
e. Industrial designs??
f. Trademarks, service marks and commercial names and designations?
g. Protection against unfair competition and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields. According to the list of TRIPS agreement intellectual property rights cover the following areas: - (i) Copyrights and related rights (i.e., rights of performers, producer of sound recordings and broadcasting organizations) (ii) Trademarks including service marks (iii) Geographical Indications including appellation of origins (iv) Industrial designs. (v) Patents including protection of new varieties of plants (vi) Layout designs (Topographies) of integrated circuits (vii) Protection of undisclosed information including trade secret and test data.?
Legal Framework?
The primary laws governing intellectual property in Bangladesh include-?
1. Patents and Designs Act, 1911?
This act regulates patents and industrial designs in Bangladesh. It allows inventors to secure exclusive rights to their inventions for a limited time, typically 20 years from the filing date. The act requires that the invention must be novel, involve an inventive step, and be capable of industrial application.?
A patent grants exclusive rights to an inventor for their invention, allowing the patent holder to determine how and whether others can use it. In return for this exclusivity, the patent owner must disclose technical information about the invention to the public. In Bangladesh, patent law is governed by the Patents and Designs Act of 1911 and the Patent and Design Rules of 1933.?
For an invention to be patentable, it must pertain to a manner of manufacture that is novel and has undergone inventive steps, along with having practical applicability. Additionally, the invention should not violate any laws or moral standards. The applicant, whether an individual or an entity, must submit an application that includes a detailed description of the invention, information about its utility and the technical issues it addresses. Drawings illustrating the invention may also be required. After submitting the application, the patentee must wait through the "patent pending" period during which the application is inspected, after which the patent can be enforced.?
2. Copyright Act, 2000?
The term "Copyright" is a significant aspect of intellectual property law in Bangladesh, defining the rights that creators have over their literary and artistic works. Copyright encompasses a wide range of works, including books, sound recordings, paintings, sculptures, engravings, films, computer programs, databases, advertisements, maps, and technical drawings.?
The primary legal framework governing copyright in Bangladesh consists of the Copyright Act of 2000, as amended in 2005, and the Copyright Rules of 2010. The Bangladesh Copyright Office operates as a quasi-judicial body.?
While registering copyright with the Copyright Office is not compulsory, such registration serves as definitive evidence in legal proceedings if another party uses the work without the owner's permission.?
Copyright owners can transfer their rights or grant licenses, which may also be issued by the Copyright Board of Bangladesh.?
For literary, dramatic, musical, or artistic works published during the author’s lifetime, copyright protection lasts for 60 years from the start of the calendar year following the author's death. In contrast, copyright for cinematographic films, sound recordings, computer programs, photographs, or works created by the government or international organizations lasts for 60 years from the date of publication.?
If copyright is infringed, the owner is entitled to various civil remedies, including injunctions, damages, and accountings. Jurisdiction for these cases lies with the District Judge's Court in the area where the plaintiff resides or conducts business. The police have the authority to seize infringing copies and prevent their importation.?
Typically, the Court of Sessions handles copyright infringement cases involving criminal charges.?
3. Trade Marks Act, 2009?
A trademark is a sign that differentiates the products or services of one business from those of others. Historically, craftsmen would place their signature or "mark" on their goods. In Bangladesh, the Trademark Act of 2009 and the Trademark Rules of 2015 serve as the primary framework for trademark regulation. Various symbols indicate the type of trademark: TM denotes an unregistered trademark used to promote products; SM signifies an unregistered service mark for services; and ? indicates a registered trademark.?
To apply for a trademark, one must first check the availability of the name. Upon receiving the application, the Registrar issues an Official Filing Receipt that includes the application number, date, and trademark details. The Registrar then examines the trademark for two main criteria: a) distinctiveness and b) compliance with legal requirements. If these conditions are met, the Registrar issues a Letter of Acceptance, allowing the trademark to be published in the Trade Marks Journal to invite objections.?
Any individual may file a Notice of Opposition with the Registrar within two months of the journal publication date. If no objections are raised by the end of the opposition period, or if any objections are resolved in favor of the applicant, the Registrar will issue a Certificate of Registration for the trademark upon payment of the required fee. In Bangladesh, a registered trademark is valid for an initial period of seven years from the filing date and can be renewed for successive ten-year periods thereafter.?
4. Geographical Indications (GIs)?
Geographical indications and designations of origin are labels used on products that originate from specific geographical areas and possess qualities, status, or characteristics unique to that location. Typically, a geographical indication features the name of the place where the goods originate. In Bangladesh, the Geographical Indication Goods (Registration & Protection) Act of 2013 and the Geographical Indication Goods Rules of 2015 serve as the primary regulations governing geographical indications. According to the Act, the Department of Patents, Designs, and Trademarks is the authority responsible for overseeing geographical indications.?
5. Industrial Designs?
An industrial design refers to the ornamental or aesthetic aspects of an object. This can include three-dimensional shapes, such as the form or exterior of a product, as well as two-dimensional features like patterns, lines, or colors.?
For a design to be eligible for registration, it must be new, original, and distinct in its characteristics. It cannot merely combine existing or similar designs. Additionally, the design must remain confidential until the registration process is complete. According to the Patents and Designs Act of 1911, registration is not permitted for purely functional designs, certain colors, or those lacking visual appeal. Moreover, registered designs must not violate public order or ethics, nor exploit official symbols or emblems.?
To protect an industrial design, the designer or their employer must submit an application to the Department of Patents, Designs, and Trademarks. The application typically requires the applicant's personal information, samples of the design, and copies of any drawings or photographs, if necessary. The application must also include a clear and comprehensive description of the design that is understandable to professionals in the industrial design field.?
Once the application is examined according to legal requirements, the registrar will issue a registration certificate. This certificate grants the holder exclusive rights to prevent unauthorized entities from copying, manufacturing, selling, or imitating products featuring the registered design. Additionally, the holder can license third parties to use the design and pursue legal action against those who infringe on their rights.?
In Bangladesh, the initial term of industrial design registration is up to five years from the registration date, with the possibility of renewal for additional five-year terms, up to a total of 15 years. However, the renewal fee must be paid before the last day of the current registration period.?
Infringement of Intellectual Property Rights?
"Infringement" refers to the violation of intellectual property rights related to patents, copyrights, and trademarks. "Misappropriation," on the other hand, pertains to trade secrets. Whether these actions constitute a breach of civil law or criminal law depends on the type of intellectual property involved, the jurisdiction, and the specifics of the action.?
a. Patent Infringement?
Patent infringement occurs when someone uses or sells a patented invention without the consent of the patent holder. The protection scope of a patented invention is outlined in the claims of the granted patent (Firth and Philips, 1995).?
b. Copyright Infringement?
Copyright infringement happens when an individual or entity reproduces, distributes, displays, or performs a work, or creates derivative works without permission from the copyright holder, typically a publisher or business representing the creator. This is often referred to as "piracy." If the copyright owner has registered their work, they can seek damages. Generally, the responsibility for enforcing copyright lies with the copyright holder.?
c. Trademark Infringement?
Trademark infringement takes place when one party uses a trademark that is identical or confusingly similar to another party's trademark, especially concerning similar products or services. While common law provides some protection for trademarks, registering a trademark offers legal advantages for enforcement. Infringement can be pursued through civil lawsuits and, in some jurisdictions, may also involve criminal law.?
d. Trade Secret Misappropriation?
Unlike patents and registered copyrights or trademarks, which are publicly accessible, trade secrets are confidential. Misappropriation of trade secrets differs from violations of other intellectual property laws. Confidentiality surrounding trade secrets is viewed as an equitable right rather than a property right, and penalties for theft are generally consistent across Commonwealth common law jurisdictions.?
International Obligations?
As a member of the WTO, Bangladesh is obligated to adhere to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). This agreement sets minimum standards for IP protection, including patents, copyrights, and trademarks. Compliance with TRIPS has necessitated the strengthening of Bangladesh’s IP laws and enforcement mechanisms.?
Additionally, Bangladesh has signed several international treaties and conventions related to IP, including:?
These commitments highlight Bangladesh's dedication to upholding international IP standards and protecting the rights of creators and innovators.?
?
Enforcement Mechanisms?
Despite having a robust legal framework, the enforcement of intellectual property rights in Bangladesh remains a significant challenge. Factors contributing to the weak enforcement include-?
1. Lack of Awareness?
Many creators and businesses in Bangladesh are unaware of their rights and the procedures for enforcing them. This lack of awareness leads to underutilization of the legal framework and a failure to take action against infringement.?
2. Judicial System Challenges?
The judicial system in Bangladesh faces challenges such as backlog of cases, delays, and corruption. These issues hinder the timely resolution of IP disputes, discouraging rights holders from seeking legal recourse.?
3. Counterfeiting and Piracy?
Counterfeiting and piracy are pervasive issues in Bangladesh. The availability of counterfeit goods in the market undermines the rights of legitimate producers and creators. Law enforcement agencies often lack the resources and training to effectively combat these issues.?
4. Limited Resources for Enforcement Agencies?
The Department of Patents, Designs and Trademarks (DPDT) and other relevant agencies are often underfunded and lack the manpower necessary for effective enforcement. This limitation hampers their ability to monitor and address IP violations.?
Recent Developments?
In recent years, there have been several positive developments in the intellectual property landscape in Bangladesh:?
The Bangladeshi government has taken steps to amend and strengthen existing IP laws, aiming to enhance protection for rights holders and comply with international standards. The Trade Marks Act, 2009, for instance, has undergone revisions to streamline the registration process and improve enforcement mechanisms.?
Various government and non-government organizations are working to raise awareness about intellectual property rights among creators, businesses, and the general public. These campaigns aim to educate stakeholders about the importance of IP protection and the available legal avenues.?
Capacity-building initiatives have been implemented to train law enforcement officials, judicial officers, and IP practitioners on the intricacies of IP law and enforcement. These initiatives aim to create a more knowledgeable and responsive IP ecosystem in Bangladesh.?
Bangladesh has been actively engaging with international organizations such as WIPO to improve its IP framework. These collaborations have facilitated knowledge transfer, capacity building, and technical assistance.?
Challenges Ahead?
Despite these advancements, significant challenges remain for intellectual property law in Bangladesh-?
Balancing IP Protection and Access?
One of the critical challenges is finding a balance between protecting intellectual property rights and ensuring access to knowledge and innovation. This is particularly important in sectors such as pharmaceuticals, where access to affordable medicines is a concern.?
Adapting to Technological Changes?
The rapid pace of technological advancement poses challenges for existing IP laws, which may not adequately address issues related to digital content, online infringement, and emerging technologies such as artificial intelligence and biotechnology.?
Combating Informal Markets?
Informal markets contribute to the proliferation of counterfeit goods and IP violations. Addressing this issue requires a multi-faceted approach that includes public awareness, enforcement, and cooperation with the private sector.?
Enhancing International Collaboration?
As globalization continues to shape the IP landscape, Bangladesh must enhance its collaboration with other countries to tackle cross-border IP issues, such as piracy and counterfeiting.?
Conclusion?
Intellectual property law in Bangladesh has made significant strides in recent years, providing a framework for the protection of creators and innovators. However, challenges remain, particularly in terms of enforcement, public awareness, and adapting to technological advancements. As Bangladesh continues to develop its economy and cultural heritage, a robust intellectual property regime will be essential for fostering creativity, innovation, and economic growth. With ongoing efforts to strengthen laws, raise awareness, and improve enforcement mechanisms, Bangladesh can build a more effective intellectual property ecosystem that benefits all stakeholders.?
?
MBA| LL.B | SAM@United Finance
4 周Insightful