The New Nation - Internet Edition

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.