The New Nation - Internet Edition

Need for exclusive intellectual property & commercial law courts

A.B.M. Shamsud Doulah

Advocate, Supreme Court of Bangladesh

We all know well that for the remedial treatment of his 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 Intellectual Property Law matters are handled in Bangladesh by 'general' judges only. The following words will justify the needs of special Intellectual Property Courts.

Recently 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. But during his service he had the responsibility of hearing the cases related to Intellectual Property matters, related to Trademarks, Copyrights, Patents, Designs and Computer software, etc. Fortunately, the said retired District Judge confirmed that he himself never handled any such Intellectual Property cases.

In Bangladesh the primary jurisdiction of hearing the Intellectual Property matters is the District Judge. Often the District Judge transfers the Intellectual Property cases to the Additional District Judges. Now, as it is contemplated in the new Trademark Ordinance 2008, considering more filing 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.

The courts concerned with the Intellectual Property Law matters are expected to be having at least some good knowledge on 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. I do not know of any court in the People's Republic of Bangladesh which has the knowledge and understanding of all these subjects. How somebody can have such knowledge and understanding without having specialised training and experience in those areas. Of course, I am pleased to say 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.

In 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 by the properly trained and experienced judges.

It 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 Internet.

Even iat 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 of 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 concerned Intellectual Property in respect of Trademarks, Copyrights, Patents, Designs and Computers etc.

What is more surprising is that the respective interested parties take advantage of such 'stay order' from the court, which perhaps, is misled or is without better and wider understanding of the concerned Intellectual Property matter. We know very well that the many appeals in the High Court Division have been lying pending 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 judgments by the higher courts of Bangladesh on the stay of operation of judgment or order by the Appellate Court.

Mr. Justice Gour Gopal Saha of the High Court Division said in his judgment [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 judgment, 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.

It is importantly notable that in the said judgment Mr. Justice Gour Gopal Saha said:

"It 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 judgment and it is moreso 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. …"

Considering the above facts and circumstances and in consideration of the fact that there are so many Intellectual Property disputes in the country, many involving the foreign countries, it has become necessary that there should be exclusive Intellectual Property Courts both the District Judges' Court level and 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.

When 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 Intellectual Property matters. The following may give a very brief idea about our Intellectual Property laws as well as various such conventions.

Bangladesh is a party to the Convention establishing the World Intellectual Property Organisation (WIPO) on January 1, 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.

Moreover, 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.

Therefore, for the sake of complete 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 disputes and related matters as well as considering the fact that Bangladesh territory is being used for marketing and sales of massive spurious and inferior 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.

Quashment of proceedings

High Court Division

(Criminal)

Sharif Uddin Chaklader-J.

And

Md. Emdadul Huq-J.

CRIMINAL MISCELLANEOUS CASE NO. 8763 OF 2001

With

CRIMINAL MISCELLANEOUS CASE NO. 11165 OF 2005

With

CRIMINAL MISCELLANEOUS CASE NO. 7514 OF 2001

(Arising out of Double Mooring P.S Case No. 17 dated 17.10.2001 corresponding to petition/Memo No. 1028/C M.M/C complaint dated 16.10.2001 now pending before the Court of Chief Metropolitan Magistrate, Chittagong).

Neo Mendes and others tttt.. Accused Petitioners.

Vs.

The State ttttt..Opposite Party.

For the Petitioners : Mr. M. Hafizullah, Advocate.

For the State : Mr. M. Mansur

Rahman, AAG.

Judgment: June 7, 2007

Code of Criminal Procedure, 1898-

Section 561A- Quashment of proceedings-

When the allegations made in the petition of complaint disclose civil liability and for that the complainant has already instituted Money suit in the competent civil Court the criminal proceedings amount to double jeopardy. Furthermore, when the part of the proceeding at the instance of some accused against whom the main allegations are made, has already been quashed in another miscellaneous proceedings, the learned judges of the High Court Division also quashed the proceedings relating to the present petitioners.

From a reading of the complaint it appears that entire allegations made in the complaint aiming to accused Mark Parco, Mustaque Amin and A.Z Hannan and the case against them having been quashed by this Court in the said decision, the proceeding so far as it relates to the accused petitioners has no leg to stand.

We find substance in this Rule ttt..(Para 4)

JUDGMENT

SHARIF UDDIN CHAKLADER-J:

Rule of Criminal Miscellaneous Case No . 8763 of 2001 at the instance of accused No. 3 Neo Mendes, accused No.4, S.M.S. Saleheen, accused No.5, Shah Newaz and Rule of Criminal Miscellaneous Case No. 11165 of 2005 at the instance of accused No.6, Shahabuddin Chowdhury and accused No.7, Ranjit Kumar Chowdhury of the chargesheet were issued for quashment of the proceeding of Double Mooring P.S. Case No. 17 dated 17.10.2001 under sections 406/420/467/468/471/476/121-A/109 of the Penal Code pending before the Court of Chief Metropolitan Magistrate, Chittagong.

2. The relevant facts for disposal of these Rules, are that, a lengthy complaint was made by the complainant, Maxim Ltd., against the accused petitioners and others alleging that as per order placed by accused No.9, Bugle Boy Industries Inc. through L/C No. DC HKH 673495 dated 29.10.2000 and L/C. No DC HKH 660006 dated 30.11.2000, the complainant manufactured all the ordered garments and in order to receive the original documents and make shipment of the consignment, the nominated forwarder of the American buyer appeared, received documents and garments and issued forwarder's Cargo Receipt No. 51845 dated 14.12.2000 for 878 cartons, value amounting to US$12,485.16 and F.C.R No. 52187 dated 23.12.2000 for 284 cartons valued at US$ 22, 262.76. It has been alleged that cargo may be delivered after surrendering documents and before surrendering these are to be endorsed by Arab Bangladesh Bank Ltd., and the Bank will endorse it only after receiving payment on behalf of the complainant. It has been alleged that accused persons took away all the garments without any information to the complainant or without taking original papers from Arab Bangladesh Bank. It has been alleged that the complainant sustained loss of US$ 37,747.92 equivalent to Tk. 19,80,631.40. From the complaint we find that the complainant disclosed how and why accuseds should be punished under the aforesaid sections of the Penal Code giving ingredients of each of the sections and thereafter, made prayer that the accused should be punished for misappropriating cargo worth of Invoice Value US$ 34,747.92 equivalent of Tk. 19,80,631.40.

3. Mr. M. Hafizullah, learned Advocate appearing for the petitioners submits that this Court in Criminal Miscellaneous Case No. 8550 of 2001 quashed the proceedings so far as it relates to the principal accused on the ground that the allegations made in the petition of complaint disclosed a civil liability for which Money Suit No. 26 of 2001 was initiated by the complainant before hand as such if this proceeding be continued that will act as double jeopardy, and also in no way bring any fruitful result to the complainant as the complaint excepting harassing the accused petitioners nothing has been disclosed, as such, the instant proceeding is liable to be quashed ..

4. In the aforesaid decision of this Court passed in Criminal Miscellaneous Case No. 8550 of 2001 this Court relying on the decisions reported in 51 DLR (AD) 14, 45 DLR (AD) 31 and 23 DLR (SC) 14 held that Civil Court when in seisin of the matter prior to institution/making of complaint, and the complainant's only endeavour to get back money from the accused persons and for that Money Suit No. 26 of 2001 having been filed before hand, institution of the criminal proceeding over the self same fact is nothing but compelling the accused persons to yield to the pressure of the complainant so that accused persons fulfil the desire of the complainant and satisfy the complainant by paying money, quashed the proceeding so far as it relates to the petitioners of that Rule. From a reading of the complaint it appears that entire allegations made in the complaint aiming to accused Mark Parco, Mustaque Amin and AZ Hannan and the case against them having been quashed by this Court in the said decision, the proceeding so far as it relates to the accused petitioners has no leg to stand. We find substance in this Rule.

5. In the result, these Rules in Criminal Miscellaneous Case No. 8763 of 2001 with Criminal Miscellaneous Case No. 8763 of 2001 with Criminal Miscellaneous Case No. 11165 of 2005 are made absolute.

6. The proceeding of Double Mooring PS Case No. 17 dated 17.10.2001 pending in the Court of Chief Metropolitan Magistrate; Chittagong is quashed so far as it relates to the accused petitioners.

7. Rule of Criminal Miscellaneous Case No. 7514 of 2001 was issued on the prayer of the accused petitioners Neo Mendes, S.M.5 Saleheen and Shah Newaz for anticipatory bail, since we have already quashed the proceeding in which the anticipatory bail was granted, this Rule has practically become infructuous.

8. In the result this i.e. Criminal Miscellaneous Case No. 7514 of 2001, is discharged as being infructuous.

Communicate this order at once.

Order relieving petitioner from service held unlawful

High Court Division

(Special Original Jurisdiction)

SM Hossain J Dr Md Shahidul Islam

Farid AhmedJ ---Petitioner

vs

Judgment April 27th, 2008 Government of Bangladesh and ors. Respondents

Constitution of Bangladesh, 1972 Article 102(2)(a)(ii)

No affidavit-in-opposition-Statements made in writ petition should be deemed to be true-No order passed on the prayer for lien the petitioner shall be deemed to have resigned from his post as soon as he has tendered resignation.

It appears that on the date of issuance of the Rule Nisi, the High Court Division directed the petitioner to serve notices upon the respondents by a special messenger of the Court at his own cost. Accordingly, notices were served upon all the respondents including the Government of Bangladesh represented by the Secretary. Ministry of Health and Family Welfare. But the Secretary, Ministry of Health and Family Welfare did not enter appearance' by filing affidavit-in-opposition. Therefore, the statements made in the Writ Petition should be deemed to be true. The high Division cannot wait for indefinite period to know the stand of the Ministry of Health and Family Welfare, exacerbating 'the miseries of the petitioner. The petitioner had no hand in delaying the matter for obtaining lien or an order accepting his resignation from service. In the background of the facts, it appears that the petitioner is a victim of circumstances. Since the Ministry did not pass any order on the petitioner's prayer for lien, he shall be deemed to have resigned from his post as soon as he tendered resignation on 17-10-2005. As the petitioner shall be deemed to have resigned, on 17-10-2005, the impugned Annexure relieving the petitioner' from service should be declared to have been issued without lawful authority. t.. (11)

TH Khan with Md Afzal H Khan, Advocate-For the Petitioner.

Saidur Rahman, Advocate-For Respondent Nos. 3 to 6.

Razik-al-Jalil, Deputy Attorney-General-For Respondent No.1

Judgment

SM Hossam J: In this application under Article 102 of the Constitution of the People's Republic 'of Bangladesh, a Rule Nisi was issued calling upon the respondents to show cause as to why the insurance of the impugned letter under Memo No. BSMMU/2007/7954 dated 6-12-2007 (Annexure-P(1) to the Writ Petition) issued under the signature of respondent No.6 shall not be declared to have been made without lawful authority.

2. The facts leading to the issuance of the Rule, in brief, are: After obtaining his Bachelor of Medicine and Bachelor of Surgery (MBBS) degree, the petitioner joined the Niamatpur Thana Health Complex in Naogaon in 1991 as a medical officer. Prior to that, the petitioner passed the BCS examination. He obtained a diploma in medical radiotherapy (DMRT) in 1993.

After that, he obtained PhD from Gunma University, Japan in 2001. He served as the Registrar and later as Assistant Professor in different places under the Ministry of Health and Family Welfare. Attracted by the advertisement of Bangabandhu Sheikh Mujib Medical University (BSMMU) published in 'The Daily Inqilab' on 25-6-2006, the petitioner applied for the post of Associate Professor through proper channel. At the meeting of the selected committee held on 28-8-2003 and according to the recommendation and approval of the authorities concerned, the petitioner received the letter of appointment on 10-9-2003 under the signature of the Registrar of BSMMU. On 24-9-2003, the Principal of Dhaka Medical College forwarded the application for lien to the Director General of Health by a memo dated 28-9-2003. The petitioner joined the BSMMU on 6-10-2003 as an Associate Professor of Oncology. The application praying for lien was forwarded to the Secretary, Ministry of Health and Family Welfare by the Directorate of Health by a memo dated 21-10-2003.

The joining letter of the petitioner was provisionally accepted by a memo dated 27-10-2003 subject to the submission of the lien granting order. Failing to obtain the order of lien, the petitioner submitted a letter of resignation to the Secretary, Ministry of Health and Family Welfare on 17-10-2005. The Directorate of Health by a memo dated 5-12-2005 gave clearance, forwarding the papers along with the letter of resignation to the Secretary, Ministry of Health and Family Welfare. By a memo dated 5-1-2006, the Ministry asked the Directorate to furnish some papers regarding the petitioner. Since no further development took place, the petitioner submitted an application to the Secretary, Ministry of Health and Family Welfare on 10-9-2006 along with all necessary papers as desired by the Ministry by the letter dated 5-1-2006.

The Directorate of Health again wrote a letter to the Ministry on 18-10-2006 expressing the consent of the Director General retarding the resignation of the petitioner. The Director General of Health, who is the President of the Evaluation committee of BSMMU by a letter dated 13-8-2007 asked the petitioner to submit service details and lien granting order. By a memo dated 6-9-2007 the Ministry asked for a clarification of the petitioner seeking permission for acceptance of his letter of resignation from service with retrospective effect. By a letter dated 29-9-2007 the petitioner furnished clarification.

(To be continued)

On 11-11-2007, respondent No. 6 issued a notice to the petitioner for showing cause within three working days as to why he should not be relieved form service of the BSMMU for working without submitting an order of resignation prior to joining. By an application dated 18-11-2007, the petitioner prayed for some time to obtain the release order from Government. In spite of that, the petitioner was illegally relieved from service by the letter dated 6-12-2007.

3. Challenging the order relieving him from service, the petitioner obtained this Rule Nisi from this Court.

4. The case of respondent Nos, 3 to 6, in short, is that the BSMMU authority followed the University Act, 1998, Ordinance, Rules, etc. for the appointment and the relieving of the petitioner from service who completely failed to meet condition No. 2 of his letter of appointment in spite of several opportunities given to him to submit order releasing him from Government service. The BSMMU authority provisionally accepted the joining letter but because of utter failure of the petitioner to submit the release order from Government service, the authority had no other alternative beyond the fulfillment of the condition No.2 of the letter of appointment.

5. Mr TH Khan, learned Advocate for the petitioner, submits that the petitioner applied for two years lien to the Government through proper channel to join his post and the application for lien was pending for approval of the Government and that in spite of his best effort, he could not obtain release order for no fault of his and the refore, he cannot be penalised. The learned Advocate further submits that when the petitioner failed to obtain any reply to his prayer for lien, he tendered resignation from service on 17-10-2005 to be effective from the 'date'-of his applying for lien and that no order was passed on the letter of resignation submitted by him through proper channel. He further submits that there are instances where lien was given to some of the candidates. He lastly submits that the University Authority should have taken the view that as soon as the. petitioner tendered letter of resignations he was no longer in Government service.

6. Mr Md Saidur Rahman, learned Advocate appearing on behalf of respondent Nos. 3-6, on the other hand, submits that the BSMMU authority had no other alternative but to enforce clause 2 of the letter of appointment as the petitioner failed to submit the order according lien or accepting resignation from service before relieving him from service by the impugned memo. He further submits that the Government should explain why no such order was passed. He then submits that unless the stand of the Ministry of Health is known in respect of the prayer of the petitioner for lien or for resignation from service made to the concerned authority, this matter should not be disposed of. He lastly submits that the University Authority had no fault at all in relieving the petitioner from service.

7. We have perused the Writ Petition, its annexure, the affidavit-in-opposition and its annexures. Admittedly, the petitioner was selected by the Selection Committee on 28-8-2003 and as per the recommendation and approval of the concerned authorities, the petitioner received letter of appointment on 10-9-2003 as evident in Annexure' C to the Writ Petition. Annexure-'D' revealed that the petitioner prayed for two years lien to the Secretary, Ministry of Health and Family Welfare though proper channel on 24-9-2003 to join BSMMU. Annexure-'E' to the Writ Petition shows that the Principal of Dhaka Medical College forwarded the application for lien to the Director General of Health by memo dated 28-9-2003. On 6-10-2003 the petitioner, however, joined as Associate Professor of Oncology in BSMMU as evident in Annexure-'F' to the Writ Petition. Record shows that the Ministry of Health and Family Welfare sat on the prayer for lien of the petitioner without passing any order whatsoever. Since the petitioner failed to obtain any order of lien, he 'submitted a letter of resignation to the Secretary, Ministry of Health and Family Welfare on 17-10-2005. Even then no final order was passed on the letter tendering resignation. Ultimately, the University Authority relieved him from service on 6-12-2007 for not complying with clause. 2 of his letter of appointment.

8. Annexure-'R', the letter of the Registrar, Chittagong University shows that lien was given to Md Siddiqur Rahman Bhuiyan for one year to join BSMMU. Annuxure-'R (2)', the notification reveals that||the resignation tendered by Dr Nurun Nahar Khanam was accepted by the Ministry of Health and Family Welfare, on 6-4-2009 pursuant to an application dated 25-9-2004. Therefore, there are instances where the Government accepted resignation.

9. In the instant case, the Ministry sat over the prayer for lien of the petitioner for an indefinite period. The Ministry could have intimated the petitioner that his prayer for lien was not accepted. Since no order was passed on the prayer for lien, the petitioner had to tender resignation to the Secretary, Ministry of Health and Family Welfare on 17-10-2003. The Ministry, however, did not pass any final order either accepting or rejecting the prayer for resignation tendered by the petitioner. Consequently, it can be concluded that the inaction of the Ministry was the product of individual discrimination. In such state of affairs, the petitioner has nothing to do in this regard because of dismal failure of the Ministry, the petitioner cannot be penalised.

10. The University Authority had to wait for a long time because the petitioner could neither obtain an order according lien or accepting his resignation from service. Consequently, the University relieved the petitioner from service because of non-compliance of clause 2 of the letter of appointment. It is contended on behalf of the respondent Nos. 3 to 6 that until the position of the Ministry of Health and Family Welfare is known, this matter should not be disposed of.

11. It appears that on the date of issuance of the Rule Nisi, this Division directed the petitioner to serve notices upon the respondents by a special messenger of the Court at his own cost. Accordingly, notices were served upon all the respondents including the Government of Bangladesh represented by the Secretary Ministry of Health and Family Welfare. But the Secretary, Ministry of Health and Family Welfare did not enter appearance by filling affidavit-in-opposition. Therefore, the statements made in the Writ Petition should be deemed to be true. This Court cannot wait for indefinite period to know the stand of the Ministry of Health and Family Welfare, exacerbating the miseries of the petitioner. We have already found that the petitioner had no hand in delaying the matter for obtaining lien or an order accepting his resignation from service. In the background of the facts, it appears that the petition is a victim of circumstances. We are of the view that since the Ministry did not pass any order on the petitioner's prayer for lien, he shall be deemed to have resigned his post as soon as he tendered resignation on 17-10-2005. As the petitioner shall be deemed to have resigned on 17-10-2005, the impugned Annexure relieving the petitioner from service should be declared to have been issued without lawful authority.

In the result, the Rule is made absolute and the impugned Annexure-P(1) (the memo dated 6-12-2007) is declared to have been issued without lawful authority having no legal effect. The respondents are directed to allow the petitioner to joint his post. There is no order as to cost.