Application Of Intellectual Property Law Bangladesh Perspective

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Application of Intellectual Property Law: Bangladesh Perspective
Introduction
Intellectual property law is a legal concept that protects the creations of human
ingenuity, its statutory provision dates back to one of the most important pieces of
legislation in this field-namely the Paris Convention of 1883 which called itself the
Paris Convention for the protection of industrial property .In today's electronic world,
an organization's intellectual property is sometimes its biggest asset. Much time and
money can be saved, and frustration and litigation avoided if company policy dictates
ownership and use of intellectual property.
Human beings from their civilization used to invent many things for their comfort of
life. In ancient times, in a Greek colony named Sybaris, the inventor of new food
recipe was granted one year exclusive right for the recipe. With the growth of
civilization this ancient form of protection turned out to be a vital demand of the time.
Today the general belief is that Intellectual Property is crucial to the economic, social
and technological development of a country. And "in this new millennium, the
Intellectual Property has entered a new characterized by the rapid expansion of
demand for new forms of intellectual property protection, greater global coverage and
unprecedented growth in the exploitation and use of intellectual property rights.
Significantly in the knowledge based new economy Intellectual Property is no longer
to be perceived as a distinct or self- contained domain, but rather as an important and
efficient policy investment that is relevant to a wide range of socioeconomic,
technological and political concern. Recent years have witnessed increased attention
to intellectual property considerations in the policy making mainstream at both
international and national levels, in a wide range of legal, technological, economic,
commercial and social fields. Developments in these fields increasingly effect
international co-operation in intellectual property, which can no longer be viewed as a
distinct or self-contained domain. Moreover, intellectual property issues and concerns
are becoming increasingly integrated with other global issues.

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As the global protection regime strengthens due to implementation of the Agreement
on Trade-Related Aspects of Intellectual Property Law, concluded under auspices of
the World Trade Organization, numerous questions arise about impacts on prospects
for economic growth. For many reasons, it is impossible to claim confidently that the
new regime will raise growth and improve economic development processes. Two
such reasons are paramount. First, many other variables affect growth in ways that
could dominate the impacts of Intellectual Property. Such elements include
macroeconomic stability, market openness, policies for improving the economy’s
technological infrastructure, and the acquisition of human capital. Second, economic
theory points out that Intellectual Property could have many effects on growth, some
positive and some negative. Further, the significance of these effects would be
dependent on circumstances in each country. However, in a broad setting of
appropriate complementary policies and transparent regulation, Intellectual Property
could play an important and positive role in promoting economic growth. Indeed, the
system of Intellectual Property itself may be structured in particular ways to favor
dynamic competition within a system of rights and obligations. With this background,
the paper addresses two broad issues. The primary finding is that development is a
complex process and that Intellectual Property could have a range of impacts. The
policy approach most conducive to expanding development is to implement an
integrated system of both Intellectual Property and corollary policies that strike a
balance of incentives in favor of rigorous but fair dynamic competition.
What Is Property?
The exclusive right of possessing, enjoying and disposing of a thing, ownership.
There are two types of property: real property and Personal Property. Most of the
legal concepts and rules associated with both types of property are derived from
English Common Law. Modern law has incorporated many of these concepts and
rules into statutes, which define the types and rights of ownership in real and personal
property.
Personal property, also referred to as movable property, is anything other than land
that can be the subject of ownership, including stocks, money, notes, Patents, and
copyrights, as well as intangible property.

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Real property is land and ordinarily anything erected on, growing on, or affixed to it,
including buildings and crops. The term is also used to declare any rights that issue
from the ownership of land. The terms real estate and real property generally refer to
land. The term land, in its general usage, includes not only the face of the earth but
everything of a permanent nature over or under it, including minerals, oil, and gases.
In modern usage, the word premise has come to mean the land itself or the land with
all structures attached. Residential buildings and yards are commonly referred to as
premises.1
The difference between real property and personal property is ordinarily easily
recognizable. The character of the property, however, can be altered. Property that is
initially personal in nature becomes part of realty by being annexed to it, such as
when rails are made into a fence on land.
In certain cases, however, the intention or agreement of the parties determines
whether property that is annexed retains its character as personal property. A
Landlord and Tenant might agree that the new lighting fixture the tenant attaches to
the ceiling of her dwelling remains the tenant's property after the expiration of the
lease.
Property may be further classified as either private or public. Private property is that
which belongs to one or more persons. Public property is owned by a country, state,
or political subdivision, such as a Municipal Corporation or a school district.
Personal Property
Personal property can be divided into two major categories: tangible and intangible.
Tangible property includes such items as animals, merchandise, and jewelry.
Intangible property includes such rights as stock, bonds, patents, and copyrights.
1
www. Principles of Intellectual Property Law. London: Cavendish Publishing Limited Cornish, W. R. (1973).
Cumulative Protection of Industrial Design. University of Columbia Law Review, 8(2). Frank, I. S. (1925).

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Possession
Possession is a property interest under which an individual to the exclusion of all
others is able to exercise power over something. It is a basic property right that
entitles the possessor to continue peaceful possession against everyone else except
someone with a superior right. It also gives the possessor the right to recover personal
property (often called chattel) that has been wrongfully taken and the right to recover
damages against wrongdoers.
To have possession, an individual must have a degree of actual control over the
object, coupled with intent to possess the object and exclude others from possessing
it. The law recognizes two types of possession: actual and constructive.
Actual possession exists when an individual knowingly has direct physical control
over an object at a given time. For example, an individual wearing a particular piece
of jewelry has actual possession of it. Constructive possession is the power and intent
of an individual to control a particular item, even though it is not physically in that
person's control. For example, an individual who has the key to a bank safe-deposit
box, which contains a piece of jewelry that she owns, is said to be in constructive
possession of the jewelry.
Lost, Mislaid, and Abandoned Property
Personal property is considered to be lost if the owner has involuntarily parted with it
and does not know its location. Mislaid property is that which an owner intentionally
places somewhere with the idea that he will eventually be able to find it again but
subsequently forgets where it has been placed. Abandoned property is property to
which the owner has intentionally relinquished all rights.
Lost or mislaid property continues to be owned by the person who lost or mislaid it.
When a person finds lost goods, the finder is entitled to possession against everyone
with the exception of the true owner.
The finder of lost articles on land belonging to someone else is entitled to possession
against everyone but the true owner. However, if the finder of the misplaced goods is
guilty of Trespass, she has no right to possess the goods. The owner of the place

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where an article is mislaid has a right to the article against everyone else but the true
owner. Abandoned property can be possessed and owned by the first person who
exercises control over it with intent to claim it as his own. In any event, between the
finder of a lost, mislaid, or abandoned article and the owner of the place where it is
found, the law applies whatever rule will most likely result in the return of the article
to its rightful owner.
Ordinarily when articles are found by an employee during and within the scope of her
employment, they are awarded to the employer rather than to the employee who found
them.
Treasure trove is any gold or silver in coin, plate, or bullion that is hidden by an
unknown owner in the earth or other private place for an extended period. The
property is not considered treasure trove unless the identity of the owner cannot be
determined. Under early common law, the finder of a treasure trove took title to it
against everyone but the true owner. The law governing treasure trove has been
merged, for the most part, into the law governing lost property. In the absence of a
contrary statutory provision, the title to treasure trove belongs to the finder against all
others with the exception of the true owner. If there is a controversy as to ownership
between the true owner and the state, the owner is entitled to the treasure trove.
Real Property
In the United States, every state has exclusive jurisdiction over the land within its
borders. Each state has the power to determine the form and effect of a transfer of real
property within its borders. Modern statutes have eliminated much traditional concern
over the proper conveyance of real property. In modern real estate law, real property
can be conveyed by a deed, with the intention of the person conveying the property,
the grantor, that the deed takes effect as a conveyance. The deed must be recorded to
give notice as to who legally holds title to the property.
What is Intellectual Property?
Intellectual property (IP) refers to creations of the mind, such as inventions; literary
and artistic works; designs; and symbols, names and images used in commerce.

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Intellectual Property is protected in law by, for example, patents, copyright and
trademarks, which enable people to earn recognition or financial benefit from what
they invent or create. By striking the right balance between the interests of innovators
and the wider public interest, the Intellectual Property system aims to foster an
environment in which creativity and innovation can flourish. Intellectual Property (IP)
refers to the protection of creations of the mind, which have both a moral and a
commercial value. IP law typically grants the author of an intellectual creation
exclusive right for exploiting and benefiting from their creation. However, these
rights, also called monopoly right of exploitation, are limited in scope, duration and
geographical extent.
IP protection is intended to stimulate the creativity of the human mind for the benefit
of all by ensuring that the advantages derived from exploiting a creation benefit the
creator. This will encourage creative activity and allow investors in research and
development a fair return on their investment. IP confers on individuals, enterprises or
other entities the right to exclude others from the use of their creations. Consequently,
intellectual property rights (IPRs) may have a direct and substantial impact on
industry and trade as the owner of an IPR may - through the enforcement of such a
right - prevent the manufacture, use or sale of a product which incorporates the IP.
For this reason control over the intangible asset (IPR) connotes control of the product
and markets. IP protection encourages the publication, distribution and disclosure of
the creation to the public, rather than keeping it secret while at the same time
encouraging commercial enterprises to select creative works for exploitation.
Intellectual property legal titles relates to the acquisition and use of a range of rights
covering different type of creations. These may be industrial or literary and artistic.
What are the different types of Intellectual Property?
Intellectual Property (IP) refers to the creations of the human minds for which
exclusive rights are recognized. Innovators, artistes and business owners are granted
certain exclusive rights to a variety of intangible assets for a specified duration.

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For example:
 Business owners are granted exclusive rights on the use of their trademarks
and geographical indications which were established by them;
 Creative artistes are granted copyrights on musical, literary, dramatic and
artistic works for their creations;
 Innovators are granted protection for their patents, industrial designs, trade
secrets, confidential information, and layout-designs of integrated circuits for
their innovations.
Intellectual Property is an intangible asset to a company. It gives business partners
and financial institutions the confidence to invest in or collaborate with the
organisation.
In addition to protecting their creation, business owners can maximise the value of
their Intellectual Properties in many ways. They can franchise, license out or transact
their Intellectual Property.
What Is the Purpose of Intellectual Property Law?
Intellectual property laws originate in the Constitution and common law. Creators of
intellectual property are granted limited rights to control the use of their works.
What is the origin of Intellectual property law?
Many scholars trace the origin of intellectual property law to John Locke, who
theorized in the 1600s that an individual who mixes labor and nature (such as by
chopping wood) creates a new item that is his or her property. Because this protects
the fruits of labor, it encourages the labor itself. This theory can be applied to both
physical goods and intangible creative works.
Article I, Section 8, of the US Constitution says that Congress shall have the power to
"promote the progress of science and useful arts, by securing for limited times to
authors and inventors the exclusive right to their respective writings and discoveries."
This is the basis for providing patent and copyright protection to inventors and

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authors. Trademark rights are not explicitly referenced in the Constitution, but the
common law contains legal protection for trademarks, too.
While European and other intellectual property regimes are concerned with moral
rights, US intellectual property laws are mostly based on economic rights. By
providing economic incentives to authors and inventors, the US hopes to encourage
them to make innovations and then reward them for revealing the innovations to the
public.
What type of economic incentive does intellectual property law provide?
When an inventor spends years on a product, the inventor may be reluctant to allow
the public to see the invention for fear that it may be copied and distributed
immediately by others. Patent law typically provides the inventor 20 years from the
date of application to exploit the invention before others may do so. This arrangement
attempts to reach a balance between encouraging innovation and allowing the public
to make free use of the invention. Copyright is similar, although it typically provides
the author 70 years of exclusive rights from the date of creation.
Trademark law is designed to protect the owner of the mark and the public
simultaneously. Trademarks help the public identify the source, ensuring consistent
quality and the ability to seek a remedy when there is a problem with a product. It also
protects the business whose diligence led to the association of a specific mark with its
product.
How does intellectual property affect the global economy?
Intellectual property is vital to the growth of both developing and established
economies around the world. Strong protection of intellectual property encourages
creativity and innovation by native and foreign parties. Medicine, literature, film,
software and brand identification can all be protected by intellectual property laws. It
is more feasible for businesses to disperse their products when they are protected from
illegal duplication of those products.
Intellectual property laws are numerous and varied, but the purpose behind them is
simple: to protect the rights of authors, inventors and businesses while encouraging

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risk and innovation that benefit the public. If you have questions about your
intellectual property2
rights, please speak with an experienced attorney.
Why is intellectual property important?
Intellectual property protection is critical to fostering innovation. Without protection
of ideas, businesses and individuals would not reap the full benefits of their inventions
and would focus less on research and development. Similarly, artists would not be
fully compensated for their creations and cultural vitality would suffer as a result.
Why should intellectual property be integrated in your business plan?
New or original knowledge and the creative expression of ideas is the driving force of
successful businesses in the 21st century. Therefore, safeguarding such knowledge
and creative expression from inadvertent disclosure or its unauthorized use by
competitors is becoming increasingly critical for developing and retaining competitive
advantage. Building a business also requires various types of other resources,3
including a network of relationships and sources of funds. The intellectual property
(IP) protection system provides a key tool for (1) keeping at bay unscrupulous
competitors, (2) developing relationships with employees, consultants, suppliers,
subcontractors, business partners and customers, and (3) obtaining funds.
To be accepted by a business incubator or to attract investors, it is necessary to have a
quality business plan that takes an objective look at the prospects of the proposed
business. In order to convince investors you will have to show that (1) there is a
demand for your product in the market place, (2) your product is superior to
competing products, if any, and (3) you have taken adequate steps to prevent `free
riding' on your success by dishonest competitors. Most entrepreneurs would argue that
the product they are offering is innovative, unique, or superior to the offerings of
competitors. But is this really so? If you believe it is, you will have to prove it, and a
patent may be the best proof of novelty you can get.
2
International Intellectual Property Alliance, 2005 Special 301 Report: Malaysia
3
. For details see D. Goon, ‘Malaysia’, in: C. Heath (ed.), Intellectual Property Law in Asia (above note 4), pp.
307-336

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Trade name, trademarks and domain names may be the prime elements that
differentiate your product from those of competitors. Therefore, your proposed trade
name, proposed trademark(s), and proposed domain name(s) should be carefully
chosen and the steps taken to register these should be referred to in your business
plan.
In addition, start-up service providers and investors will want to make sure that the
product you propose to sell is not relying, without authorization, on other companies'
trade secrets, copyrighted materials, patents or other IP rights as this may bring the
downfall of your own business through expensive litigation. In some high-tech sectors
the risk of infringing on third party IP rights is high and start-up service providers and
investors may be reluctant to take the risk unless you can prove (e.g. through a patent
or trademark search) that no such risks exist.
For many businesses confidential business information (such as details of production,
secret inventions, and technical, financial and marketing know-how) alone may be the
source of their competitive advantage. In such circumstances, it is important to
communicate to start-up service providers and investors that your enterprise has
proprietary and significant business information - known as trade secrets - and that
you have taken adequate steps to protect it from employees and competitors. In fact,
even your business plan is a secret document that should not be disclosed except on a
'need-to-know basis' and that too, generally, only after the employee, investor, or
whoever else concerned, has first signed a non-disclosure or confidentiality
agreement.
In short, if IP is an important asset for your business if you own patents or patentable
technologies, industrial designs, trade secrets, reputable trademarks or hold the
economic rights to copyright works), then it should be a key part of your business
plan. An adequate reference to the assets of a company and of its market opportunities
should not only list the tangible assets but also the intangible assets as the latter are
increasingly the key to a company's success in a hyper competitive environment. As
such, any indication that confirms due diligence on your part in the management of IP
assets is likely to play an important role in convincing start-up service providers and
investors of your company's potential.

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Intellectual property rights in Bangladesh
It is time for the country to start taking property rights seriously Bangladesh is rapidly
taking steps towards establishing itself as a mid-income country. Socio-economic
indicators demonstrate that Bangladesh is a strong emerging economy and a culturally
enriched nation.
This emergence has been gradually recognized worldwide and the international media
has reported that Bangladesh may surpass western countries by 2050.
These rapid developments have been fueled by the relentless entrepreneurship of
locals, government policies increased availability of technology, creativity and artistic
works.
History shows us that creativity and artistic works have been major sources of
economic and cultural growth in this part of the world. The creative talent from
Rabindranath Tagore to Kazi Nazrul Islam from Lalon Fakhir to Hasan Raza have
always been a ray of hope in this poverty stricken land.
However, extensive infringement of intellectual property rights (IPR) have
discouraged creativity and deprived artistic works of their economic value and
protection of originality.
Although signs of improvement are evident in various aspects of our economy, our
creative and cultural industry is still at a nascent stage. The balance of power is still
tilted in favor of publishers and phonogram producers.
There are not enough precedents in our industry guaranteeing the rights of the
author/creator. Even the late great novelist Humayun Ahmed had not signed any
concrete agreements with publishers to ensure the copyright of his books. Therefore,
there is a general lack of confidence, awareness and professional support for creators
and authors, which is being exploited by those engaged in piracy.
Intellectual Property Law in Bangladesh
Intellectual property refers to creations of the mind, inventions, literary and artistic
works, and symbols, names and images used in commerce. Intellectual Property
Rights are like any other property rights – they allow the creator, or owner of a patent,
trademark or copyright to benefit from his or her own work or investment. These
rights are outlined in Article 27 of the Universal Declaration of Human Rights, which

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sets forth the right to benefit from the protection of moral and material interest
resulting from authorship of any scientific, literary or artistic production.
The importance of intellectual property was first recognized in the Paris Convention
for the protection of Industrial Property in 1883 and Bern Convention for the
protection of Literary and Artistic Works in 1886. Both treaties are administered by
the World Intellectual Property Organisation.
A patent is an exclusive right granted for an invention, which is a product or a process
that provides a new way of doing something, or offers a new technical solution to a
problem. A patent provides for protection for the invention to the owner of the patent.
The protection is granted for a limited period, generally 20 years. However in our
Patents and Designs Act, 1911 the term of patent is 16 years from its date unless
otherwise expressly provided.
A trademark is a distinctive sign which identifies certain goods or services as those
produced or provided by a specific person or enterprise. The system helps consumers
identify and purchase a product or service because its nature and quality, indicated by
unique trademark, meet their needs.
Copyright is a legal term, describing rights given to creators for their literary or
artistic works. The kind of works covered by copyrights include literary works such as
novels, poems, plays, reference works, newspapers, computer programs, databases,
films, musical compositions, choreography, artistic works such as paintings,
drawings, photographs and sculpture, architecture and advertisements, maps and
technical drawings. The Copyright Act, 2000 says the copyright shall exist for a
period of 60 years counted from calendar year next to the death of the creator.
At present, it is thought that eight subjects fall within the scope of Intellectual
Property Rights. These are: copyright, patents, industrial designs, trademarks and
merchandise marks, geographical indications, layout designs of integrated circuits,
plant variety protection, and electronic transactions or in other words information
technology.

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Out of these eight subjects Bangladesh has legislation on patents and design since
1911, on trademarks since 1940, and on copyright since 1962. In most of the countries
of the world, patents and industrial designs are two different subjects and they have
two different legislations on the same.
Out of aforesaid eight subjects of intellectual property rights, the Law Commission of
Bangladesh prepared the draft law on five subjects of which on four updating was
done, while the fifth one, namely information technology, in other words law on
electronic transactions, is a completely new enactment in the context of Bangladesh.
Amongst the four updated laws, only the Copyright Law was re-enacted in 2000 while
four others are yet to be enacted by the parliament.
Bangladesh does not have any law on three subjects of Intellectual Property Rights,
namely, geographical indications, layout designs of integrated circuits and plant
variety protection.
Bangladesh, being one of the members of the Least Developed Countries, is enjoying
protection up to December 31, 2015 to make all the existing laws on Intellectual
Property Rights compatible with TRIPS Agreement before the expiry of the deadline.
With regard to subjects on which Bangladesh does not have, as yet, any legislation, on
those subjects also, Bangladesh may have to come out with draft legislation before the
expiry of the deadline. Because of signing as well as ratifying World Trade
Organisation Agreement, an obligation has fallen upon Bangladesh to submit all the
existing and would be legislations on Intellectual Property Rights to the TRIPS
Council, before expiry of the deadline and if any one of those is found to be
inconsistent with the TRIPS Agreement, the government of Bangladesh may have to
face embarrassment.
Amongst 50 Least Developed Countries of the world, only Bangladesh, a country of
the SAARC region, has the capacity to produce quality medicine. At present,
Bangladesh meets 97 per cent of its pharmaceutical requirements from domestic
production. Bangladesh would enjoy patent production till December 31, 2015. Some
pharmaceutical companies of Bangladesh have got Good Manufacturing Practices
certificate from European Union, Medicine and Healthcare Products Regulatory

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Agency from UK, Regulatory Inspection Authority from Austria, and European
Medicines Agency from Europe. Some companies of Bangladesh have applied for TG
Australia, which is a medicinal standard and compliance certificate, and they would
most likely be attaining it very soon. The UK’s MHRA is one of the toughest
registration processes for pharmaceutical products in the world. Any company having
MHRA certification finds it easier to get other certification from any other country or
region. Bangladesh, being a member of LDCs, can export generic medicines to any
country of the world, while with regards to branded medicine, that is medicine for
which patent right is required, Bangladesh can also export that to LDCs, if by way of
reverse engineering, the formulation of manufacturing is evolved. In this respect, it is
worthwhile to mention here that branded drugs are usually patented and are marketed
by the innovator company while generic drugs are copy of innovator brands and
introduced only after expiry of patent life of the brand. Besides, infrastructure for
producing quality medicine, aided with cheap labor, lower prices of electricity and
gas, depreciation of the US dollar against most currencies and comparative
advantages for Bangladesh under the WTO Agreement on TRIPS have inspired many
global pharmaceutical giants to get their products, branded and generic, manufactured
from Bangladesh on a contract manufacturing or under licensing basis.
For the LDCs, all applications regarding patent of medicine and agricultural
chemicals will be kept suspended until January 1, 2016. Till expiry of the deadline, all
applications relating to patents for medicine and agricultural chemicals would be
preserved in a ‘mailbox.’ TRIPS waived the exclusive marketing right of any new
drug of its manufacturer during the period in case of the LDCs. Multinational
companies will not be able to patent their formulas in LDCs, due to the waiver given
to the LDCs under the WTO Agreement. Bangladesh can get advantage of this
waiver.
Different pharmaceutical companies have adopted a series of different quality
management activities to sustain the supply to the European and other regulated
markets, in addition to the non-regulated markets. These measures are taken
according to the international standard of Pharmaceutical Inspection Convention and
Pharmaceutical Inspection Cooperation Scheme. Some companies have also acquired
both quality and technology of Active Pharmaceutical Ingredient with European Drug

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Master File. These altogether have opened a new door of possibility for the
pharmaceutical sectors to cater to the demand of the region as well as other, both
regulated and non-regulated markets of the world, in affordable and competitive
prices.
TRIPS allow any developed and developing countries to meet any urgency by parallel
importation or by way of compulsory licensing and in that case, the aspect of patent
would not be applicable. In respect of parallel importation, two types of principles are
followed, one is Regional Exhaustion and the other is International Exhaustion. In
case of Regional Exhaustion, the requiring country can get the patented medicine
manufactured from any country of the region while in case of International
Exhaustion; the requiring country can get the patented medicine manufactured from
any country of the world. It mainly depends on what the domestic legislation provides
for. The same principle is also applicable in case of compulsory licensing. The United
States, in 2001, adopted this, when there was an outbreak of Anthrax, and by breaking
patent, got the medicine named Ciprofloxacin, a product of Bayar, Germany,
manufactured by a pharmaceutical company of Canada. In 2006, there was an
outbreak of HIV in Thailand, and the Thai authorities also, by breaking patent, got the
medicine named Efavirenz, a product of Marks, Germany, manufactured by a
pharmaceutical company of India. These helped the governments of both the countries
to supply medicines to their nationals at affordable prices when there was great crisis
of medicines.
Since Bangladesh has got infrastructure for producing quality medicine, so in case of
any such eventualities, Bangladeshi pharmaceutical companies can avail the
opportunities and earn acclaim and prestige internationally and thereby help the
country to benefit economically in respect of employment generation and foreign
exchange earnings.
What is a patent?
A patent is a right that is granted for any device, substance, method or process that is
new, inventive, and useful. A patent is legally enforceable and gives you (the owner),
exclusive rights to commercially exploit the invention for the life of the patent.

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A patent is an exclusive right granted for an invention, which is a product or a process
that provides, in general, a new way of doing something, or offers a new technical
solution to a problem. To get a patent, technical information about the invention must
be disclosed to the public in a patent application.
A patent is a set of exclusive rights granted by a sovereign state to an inventor or
assignee for a limited period of time in exchange for detailed public disclosure of an
invention. An invention is a solution to a specific technological problem and is a
product or a process. Patents are a form of intellectual property. The procedure for
granting patents, requirements placed on the patentee, and the extent of the exclusive
rights vary widely between countries according to national laws and international
agreements. Typically, however, a granted patent application must include one or
more claims that define the invention. A patent may include many claims, each of
which defines a specific property right. These claims must meet relevant patentability
requirements, such as novelty, usefulness, and non-obviousness. The exclusive right
granted to a patentee in most countries is the right to prevent others, or at least to try
to prevent others, from commercially making, using, selling, importing, or
distributing a patented invention without permission.
Patents, technology and development
The WIPO-World Economic Forum Inventor Assistance Program (WIPO-WEF IAP)
matches developing country inventors and small businesses with limited financial
means with patent attorneys, who provide pro bono legal assistance to secure patent
protection. The Access to Research for Development and Innovation (ARDI) program
provides free access to major scientific and technical journals for local, not-for-profit
institutions in least-developed countries; and low-cost access to industrial property
offices in developing countries. Through the Access to Specialized Patent Information
(ASPI) program, patent offices and academic and research institutions in developing
countries can receive free or low-cost access to sophisticated tools and services for
retrieving and analyzing patent data. Our Technology and Innovation Support Center
(TISC) program gives innovators in developing countries access to high quality
technology information and related services to help them create, protect, and manage
intellectual property rights. WIPO’s International Cooperation on the Examination of

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Patents (ICE) service provides expert assistance, training, and access to collections of
patent documents to developing countries.
Patent Infringement
Patent infringement occurs when a third party, without authorization from the
patentee, makes, uses, or sells a patented invention. Patents, however, are enforced on
a nation by nation basis. The making of an item Bangladesh.
Enforcement
Patents can generally only be enforced through civil lawsuits. Typically, the patent
owner seeks monetary compensation for past infringement, and seeks an injunction
that prohibits the defendant from engaging in future acts of infringement. An accused
infringer has the right to challenge the validity of the patent allegedly being infringed
in a countersuit. A patent can be found invalid on grounds described in the relevant
patent laws, which vary between countries. Often, the grounds are a subset of
requirements for patentability in the relevant country. Although an infringer is
generally free to rely on any available ground of invalidity (such as a prior
publication, for example), some countries have sanctions to prevent the same validity
questions being reiterated. An example is the UK Certificate of contested validity.
Patent licensing agreements are contracts in which the patent owner (the licensor)
agrees to grant the licensee the right to make, use, sell, and/or import the claimed
invention, usually in return for a royalty or other compensation. It is common for
companies engaged in complex technical fields to enter into multiple license
agreements associated with the production of a single product. Moreover, it is equally
common for competitors in such fields to license patents to each other under cross-
licensing agreements in order to share the benefits of using each other's patented
inventions.
Ownership
In most countries, both natural persons and corporate entities may apply for a patent.
In the United States, however, only the inventor(s) may apply for a patent although it
may be assigned to a corporate entity subsequently and inventors may be required to
assign inventions to their employers under an employment contract. In most European

18
countries, ownership of an invention may pass from the inventor to their employer by
rule of law if the invention was made in the course of the inventor's normal or
specifically assigned employment4
duties, where an invention might reasonably be
expected to result from carrying out those duties, or if the inventor had a special
obligation to further the interests of the employer's company.
Governing laws
The grant and enforcement of patents are governed by national laws, and also by
international treaties, where those treaties have been given effect in national laws.5
Patents are granted by national or regional patent offices.[22]
A given patent is
therefore only useful for protecting an invention in the country in which that patent is
granted. In other words, patent law is territorial in nature. When a patent application is
published, the invention disclosed in the application becomes prior art and enters the
public domain (if not protected by other patents) in countries where a patent applicant
does not seek protection, the application thus generally becoming prior art against
anyone (including the applicant) who might seek patent protection for the invention in
those countries.
Rights of a Patent Owner
The patent owner is granted the exclusive right to prevent others from making, using,
offering for sale, or selling the patented invention. Patents were issued for a non-
renewable period of seventeen years, measured from the date of issuance. Under
current statutory provisions, the term of protection for utility patents is twenty years
measured from the date of filing, with extensions of up to five years permitted for
drugs, medical devices, and additives. The current term of protection for design
patents is fourteen years from the date of filing. A long-established doctrine of patent
law, the exhaustion doctrine, entitles a patentee to a single royalty per patented
device. This rule aims to prevent patentees from collecting a series of royalty
payments for a single invention.
4
Protecting Intellectual Property Rights: Issues and Controversies. Washington D.C.: AIE .Bryan, A. G. (1998).
Black’s Law Dictionary (7th ed.).Catherine, C. (1999).
5
Sourcebook on Intellectual Property Law. London: Cavendish Publishing. in & Enforcement of Asian IP Law’

19
What is Copyright?
Copyright is a legal term used to describe the rights that creators have over their
literary and artistic works. Works covered by copyright range from books, music,
paintings, sculpture, and films, to computer programs, databases, advertisements,
maps, and technical drawings.
Copyright is a legal right created by the law of a country that grants the creator of an
original work exclusive rights to its use and distribution, usually for a limited time.
The exclusive rights are not absolute; they are limited by limitations and exceptions to
copyright law, including fair use.
Copyright is a form of intellectual property, applicable to any expressed
representation of a creative work. Under US copyright law, however, legal protection
attaches only to fixed representations in a tangible medium.[1]
It is often shared among
multiple authors, each of whom holds a set of rights to use or license the work, and
who are commonly referred to as rights holders. These rights frequently include
reproduction, control over derivative works, distribution, public performance, and
"moral rights" such as attribution.[3]
Copyrights are considered territorial rights, which mean that they do not extend
beyond the territory of a specific jurisdiction. While many aspects of national
copyright laws have been standardized through international copyright agreements,
copyright laws vary by country.[4]
Typically, the duration of copyright is the author's life plus 50 to 100 years (that is,
copyright typically expires 50 to 100 years after the author dies, depending on the
jurisdiction). Some countries require certain copyright formalities to establishing
copyright, but most recognize copyright in any completed work, without formal
registration. Generally, copyright is enforced as a civil matter, though some
jurisdictions do apply criminal sanctions.
Most jurisdictions recognize copyright limitations, allowing "fair" exceptions to the
creator's exclusivity of copyright and giving users certain rights. The development of
digital media and computer network technologies have prompted reinterpretation of

20
these exceptions, introduced new difficulties in enforcing copyright, and inspired
additional challenges to copyright law's philosophic basis. Simultaneously, businesses
with great economic dependence upon copyright, such as those in the music business,
have advocated the extension and expansion of copyright and sought additional legal
and technological enforcement.
Scope
Copyright may apply to a wide range of creative, intellectual, or artistic forms, or
"works". Specifics vary by jurisdiction, but these can include poems, theses, plays and
other literary works, motion pictures, choreography, musical compositions, sound
recordings, paintings, drawings, sculptures, photographs, computer software, radio
and television broadcasts, and industrial designs. Graphic designs and industrial
designs may have separate or overlapping laws applied to them in some jurisdictions.
Copyright does not cover ideas and information themselves, only the form or manner
in which they are expressed.[20]
For example, the copyright to a Mickey Mouse
cartoon restricts others from making copies of the cartoon or creating derivative
works based on Disney's particular anthropomorphic mouse, but does not prohibit the
creation of other works about anthropomorphic mice in general, so long as they are
different enough to not be judged copies of Disney's.[20]
Note additionally that Mickey
Mouse is not copyrighted because characters cannot be copyrighted; rather,
Steamboat Willie is copyrighted and Mickey Mouse, as a character in that
copyrighted work, is afforded protection.
In many jurisdictions, copyright law makes exceptions to these restrictions when the
work is copied for the purpose of commentary or other related uses (See fair use, fair
dealing). It should be noted that US copyright does NOT cover names, title, short
phrases or Listings (such as ingredients, recipes, labels, or formulas). However, there
are protections available for those areas copyright does not cover – such as
trademarks and patents.
Copyright laws are standardized somewhat through international conventions such as
the Berne Convention and Universal Copyright Convention. These multilateral
treaties have been ratified by nearly all countries, and international organizations such

21
as the European Union or World Trade Organization require their member states to
comply with them.
Cost of enforcing copyright
In most jurisdictions the copyright holder must bear the cost of enforcing copyright.
This will usually involve engaging legal representation, administrative and or court
costs. In light of this, many copyright disputes are settled by a direct approach to the
infringing party in order to settle the dispute out of court.
Transfer and licensing, and assignment
A copyright, or aspects of it, may be assigned or transferred from one party to
another.[39]
For example, a musician who records an album will often sign an
agreement with a record company in which the musician agrees to transfer all
copyright in the recordings in exchange for royalties and other considerations. The
creator (and original copyright holder) benefits, or expects to, from production and
marketing capabilities far beyond those of the author. In the digital age of music,
music may be copied and distributed at minimal cost through the Internet, however
the record industry attempts to provide promotion and marketing for the artist and his
or her work so it can reach a much larger audience. A copyright holder need not
transfer all rights completely, though many publishers will insist. Some of the rights
may be transferred, or else the copyright holder may grant another party a non-
exclusive license to copy and/or distribute the work in a particular region or for a
specified period of time.
Copyright may also be licensed. Some jurisdictions may provide that certain classes
of copyrighted works be made available under a prescribed statutory license (e.g.
musical works in the United States used for radio broadcast or performance). This is
also called a compulsory license, because under this scheme, anyone who wishes to
copy a covered work does not need the permission of the copyright holder, but instead
merely files the proper notice and pays a set fee established by statute (or by an
agency decision under statutory guidance) for every copy made.[41]
Failure to follow
the proper procedures would place the copier at risk of an infringement suit. Because
of the difficulty of following every individual work, copyright collectives or

22
collecting societies and performing rights organizations (such as ASCAP, BMI, and
SESAC) have been formed to collect royalties for hundreds (thousands and more)
works at once. Though this market solution bypasses the statutory license, the
availability of the statutory fee still helps dictate the price per work collective rights
organizations charge, driving it down to what avoidance of procedural hassle would
justify.
Free licenses
There are a large number of free licenses, where users are granted several rights; for
example, those mentioned in the Free Software Definition, Open Source Definition,
Deviant Free Software Guidelines or Definition of Free Cultural Works. Examples of
free licenses are the GNU General Public License, BSD license and some Creative
Commons licenses.
Founded in 2001, by James Boyle, Lawrence Lessing, and Hal Abelson the Creative
Commons (CC) is a non-profit organization[42]
which aims to facilitate the legal
sharing of creative works. To this end, the organization provides a number of
copyright license options to the public, free of charge. These licenses allow copyright
holders to define conditions under which others may use a work and to specify what
types of use are acceptable.
Terms of use have traditionally been negotiated on an individual basis between
copyright holder and potential licensee. Therefore, a general CC license outlining
which rights the copyright holder is willing to waive enables the general public to use
such works more freely. Six general types of CC licenses are available. These are
based upon copyright holder stipulations such as whether he or she is willing to allow
modifications to the work, whether he or she permits the creation of derivative works
and whether he or she is willing to permit commercial use of the work. As of 2009
approximately 130 million individuals had received such licenses.
Copyright infringement
For a work to be considered to infringe upon copyright, its use must have occurred in
a nation that has domestic copyright laws or adheres to a bilateral treaty or established

23
international convention such as the Berne Convention or WIPO Copyright Treaty.
Improper use of materials outside of legislation is deemed "unauthorized edition", not
copyright infringement.
Copyright infringement most often occurs to software, film and music. However,
infringement upon books and other text works remains common, especially for
educational reasons. Statistics regarding the effects of copyright infringement are
difficult to determine. Studies have attempted to determine whether there is a
monetary loss for industries affected by copyright infringement by predicting what
portion of pirated works would have been formally purchased if they had not been
freely available.[52]
Other reports indicate that copyright infringement does not have
an adverse effect on the entertainment industry, and can have a positive effect. In
particular, a 2014 University study concluded that free music content, accessed on
YouTube, does not necessarily hurt sales, instead has the potential to increase sales.
Objects of copyright
According to section 15 copyright subsists in
 literary works
 dramatic works
 musical works
 artistic works (i.e. painting, sculpture, drawing, engraving or a photograph, a
work of architecture and any other work of artistic craftsmanship)
 cinematographic films
 sound recordings
Owner of copyright
The first owner of copyright in general is the author (exceptions: works for hire,
government works. The owner of copyright may assign the copyright or grant any
interest in the copyright by license. Licenses may also be granted by the Copyright
Board.

24
Registration of copyright with the Copyright Office is not obligatory, but if
registration has taken place the Register of Copyrights gives prima facie evidence of
the particulars entered there in.
Term of copyright
Copyright in a literary, dramatic, musical or artistic work published within the life
time of the author subsists until 60 years from the beginning of the calendar year next
following the year in which the author dies.
Copyright in a cinematographic film, a sound recording, a photograph, a computer
programmer or a work6
of the Government, a local authority or an international
organization subsists until 60 years from the beginning of the calendar year next
following the publication of the work.
Meaning of copyright
Copyright means inter alia the exclusive right
 to reproduce the work
 to issue copies of the work to the public
 to perform or broadcast the work
 to make any translation or adaption of the work.
Copyright infringement
When copyright is infringed (s. 71), the owner of copyright (as well as the exclusive
licensee) is entitled to certain civil remedies (injunction, damages, accounts; s. 76).
Jurisdiction lies with the court of District Judge of the place where the person
instituting the proceeding resides or carries on business (s. 81).In addition, special
moral rights lie with the author (s. 78) as well as a droid de suite (s. 23).
6
. The Arbitration Act, 1940.4. The Copyright Law (amended and consolidated), Dhaka, July 2000 (in Bangla).
Bunko, R. P. (1987). Protecting Intellectual Property Rights: Issues and Controversies. Washington D.C.: AIE
.Bryan, A. G. (1998). Black’s Law Dictionary (7th ed.).Catherine, C. (1999).

25
Infringing copies are deemed to be the property of the owner of the copyright, who
accordingly may take proceedings for the recovery of possession thereof or in respect
of the conversion thereof (s. 79). Infringing copies may be seized by the police (s. 93)
and can be forbidden to be imported (s. 74).
Copyright infringement may also lead to criminal charges (ss. 82 to 91) to be tried
by no court inferior to that of a Court of Sessions (s. 92).
Patent vs. Copyrights
A software patent is a very powerful protection to have. Patents are harder to obtain
and do not last as long as copyrights, but they are important for software developers.
Patents can protect features of a program that are not protected under copyright laws.
If one of Arthur's programs uses an algorithm, or a step-by-step procedure for solving
a specific problem, that is new, useful, and non-obvious, he needs a patent to protect
it. Therefore, no one else would be able to use Arthur's algorithm in their computer
program without being guilty of infringement.
Copyrights offer the most basic protection for software. A copyright gives Arthur the
right to make and distribute copies of his programs. This is one of the strongest
weapons against software piracy. Copyright laws give owners, like Arthur, the ability
to prevent others from making copies as well as from creating or selling works that
are very similar to the copyrighted work. The weakness of copyright laws is that they
do not offer protection to the ideas underlying the program. Ideas and concepts could
be used by competitors when they are not protected by patents.
What is Trademarks?
A trademark is any word, name, symbol, or design, or any combination thereof, used
in commerce to identify and distinguish the goods of one manufacturer or seller from
those of another and to indicate the source of the goods.
A trademark identifies the brand owner of a particular product or service. Trademarks
can be licensed to others; for example, Bully land obtained a license to produce Smurf

26
figurines; the Lego Group purchased a license from Lucas film in order to be allowed
to launch Lego Star Wars; TT Toys is a manufacturer of licensed ride-on replica cars
for children. The unauthorized usage of trademarks by producing and trading
counterfeit consumer goods is known as brand piracy. The owner of a trademark may
pursue legal action against trademark infringement. Most countries require formal
registration of a trademark as a precondition for pursuing this type of action. The
United States, Canada and other countries also recognize common law trademark
rights, which means action can be taken to protect an unregistered trademark if it is in
use. Still common law trademarks offer the holder in general less legal protection than
registered trademarks.7
Fundamental concepts
The essential function of a trademark is to exclusively identify the commercial source
or origin of products or services, so a trademark, properly called, indicates source or
serves as a badge of origin. In other words, trademarks serve to identify a particular
business as the source of goods or services. The use of a trademark in this way is
known as trademark use. Certain exclusive rights attach to a registered mark. It should
be noted that trademark rights generally arise out of the use of, or to maintain
exclusive rights over, that sign in relation to certain products or services, assuming
there are no other trademark objections.
Different goods and services have been classified by the International (Nice)
Classification of Goods and Services into 45 Trademark Classes (1 to 34 cover goods,
and 35 to 45 services). The idea behind this system is to specify and limit the
extension of the intellectual property right by determining which goods or services are
covered by the mark, and to unify classification systems around the world.
Maintaining rights
Trademarks rights must be maintained through actual lawful use of the trademark.
These rights will cease if a mark is not actively used for a period of time, normally 5
years in most jurisdictions. In the case of a trademark registration, failure to actively
use the mark in the lawful course of trade, or to enforce the registration in the event of
infringement, may also expose the registration itself to become liable for an

27
application for the removal from the register after a certain period of time on the
grounds of "non-use". It is not necessary for a trademark7
owner to take enforcement
action against all infringement if it can be shown that the owner perceived the
infringement to be minor and inconsequential. This is designed to prevent owners
from continually being tied up in litigation for fear of cancellation. An owner can at
any time commence action for infringement against a third party as long as it had not
previously notified the third party of its discontent following third party use and then
failed to take action within a reasonable period of time (called acquiescence). The
owner can always reserve the right to take legal action until a court decides that the
third party had gained notoriety which the owner 'must' have been aware of. It will be
for the third party to prove their use of the mark is substantial as it is the onus of a
company using a mark to check they are not infringing previously registered rights. In
the US, owing to the overwhelming number of unregistered rights, trademark
applicants are advised to perform searches not just of the trademark register but of
local business directories and relevant trade press. Specialized search companies
perform such tasks prior to application.
In the U.S., failure to use a trademark for this period of time will result in
abandonment of the mark, whereby any party may use the mark. An abandoned mark
is not irrevocably in the public domain, but may instead be re-registered by any party
which has re-established exclusive and active use, and must be associated or linked
with the original mark owner. A mark is registered in conjunction with a description
of a specific type of goods, and if the party uses the mark but in conjunction with a
different type of goods, the mark may still be considered abandoned, as was the case
in Lens.com, Inc. v. 1-800 Contacts, Inc.. If a court rules that a trademark has become
"generic" through common use (such that the mark no longer performs the essential
trademark function and the average consumer no longer considers that exclusive
rights attach to it), the corresponding registration may also be ruled invalid.
Unlike other forms of intellectual property (e.g., patents and copyrights) a registered
trademark can, theoretically, last forever. So long as a trademark's use is continuous a
trademark holder may keep the mark registered with the U.S. Patent and Trademark
7
The Rationale Basis of Trademark Protection. Harvard Law Review. Hillary, P., & Clifford, M. (1990).
Commercial Exploitation of Intellectually Property. In J. O. Casein

28
Office by filing Section 8 Affidavit(s) of Continuous Use as well as Section 9
Applications for renewal, as required.
Specifically, once registered with the U.S. Patent and Trademark Office the owner of
a trademark is required to file a Section 8 Affidavit of Continuous Use to maintain the
registration between the 5th and 6th year anniversaries of the registration of the mark
or during the 6-month grace period following the 6th-year anniversary of the
registration.[25]
During this period, a trademark owner may concurrently opt to file a
Section 15, Declaration of Incontestability. A mark declared incontestable is immune
from future challenge, except in instances where the mark becomes generic, the mark
is abandoned, or if the registration was acquired fraudulently. Note, if the Section 8
Affidavit is filed during the 6-month grace period additional fees to file the Affidavit
with the U.S. Patent and Trademark Office will apply.
In addition to requirement above, U.S. trademark registrations are also required to be
renewed on or about every 10-year anniversary of the registration of the trademark.
The procedure for 10-year renewals is somewhat different from that for the 5th-6th
year renewal. In brief, registrants are required to file both a Section 8 Affidavit of
Continuous Use as well as a Section 9 Application for Renewal every ten years to
maintain their registration
Limits and defenses to claims of infringement
Trademark is subject to various defenses, such as abandonment, limitations on
geographic scope, and fair use. In the United States, the fair use defense protects
many of the interests in free expression related to those protected by the First
Amendment.
Fair use may be asserted on two grounds, either that the alleged infringer is using the
mark to describe accurately an aspect of its products, or that the alleged infringer is
using the mark to identify the mark owner. One of the most visible proofs that
trademarks provide a limited right in the U.S. comes from the comparative advertising
that is seen throughout U.S. media.

29
An example of the first type is that although Maytag owns the trademark "Whisper
Quiet", makers of other products may describe their goods as being "whisper quiet"
so long as these products do not fall under the same category of goods the trademark
is protected under.
An example of the second type is that Audi can run advertisements saying that a trade
publication has rated an Audi model higher than a BMW model, since they are only
using "BMW" to identify the competitor. In a related sense, an auto mechanic can
truthfully advertise that he services Volkswagens, and a former Playboy Playmate of
the Year can identify herself as such on her website.
Wrongful or groundless threats of infringement
Various jurisdictions have laws which are designed to prevent trademark owners from
making wrongful threats of trademark infringement action against other parties. These
laws are intended to prevent large or powerful companies from intimidating or
harassing smaller companies.
Where one party makes a threat to sue another for trademark infringement, but does
not have a genuine basis or intention to carry out that threat, or does not carry out the
threat at all within a certain period, the threat may itself become a basis for legal
action. In this situation, the party receiving such a threat may seek from the Court a
declaratory judgment; also known as a declaratory ruling.
International law
Although there are systems which facilitate the filing, registration or enforcement of
trademark rights in more than one jurisdiction on a regional or global basis it is
currently not possible to file and obtain a single trademark registration which will
automatically apply around the world. Like any national law, trademark laws apply
only in their applicable country or jurisdiction, a quality which is sometimes known as
"territoriality".
Protection of well-known marks
Many countries protect unregistered well-known marks in accordance with their
international obligations under the Paris Convention for the Protection of Industrial

30
Property and the Agreement on Trade-Related Aspects of Intellectual Property
Rights8
(the TRIPS Agreement). Consequently, not only big companies but also
SMEs may have a good chance of establishing enough goodwill with customers so
that their marks may be recognized as well-known marks and acquire protection
without registration. It is, nevertheless, advisable to seek registration, taking into
account that many countries provide for an extended protection of registered well-
known marks against dilution, the reputation of the mark being weakened by the
unauthorized use of that mark by others.
A number of trademark laws merely implement obligations under Article 16.3 of the
TRIPS Agreement and protect well-known registered trademarks only under the
following conditions: 1- that the goods and services for which the other mark is used
or is seeking protection are not identical with or similar to the goods for which the
well-known mark acquired its reputation 2- that the use of the other mark would
indicate a connection between these goods and the owner of the well-known mark,
and 3 - that their interests are likely to be damaged by such use.
What Do Trademarks Protect?
Trademarks protect consumers from being misled. They ensure free competition by
protecting the goodwill of the entity that owns the mark. Unlike copyrights that deal
with the marketplace of expressive ideas, trademarks deal with the marketplace of
goods and services.
A trademark represents the goodwill of a business or a particular manufacturer or
producer. Trademark symbols provide powerful source-identifying cues that allow us
to make value judgments about the quality of certain goods before we sample them.
For example, when we see (and hear) Leo the Lion and the phrase "Ares Gratia
Artist" at the beginning of a motion picture, we immediately associate this trademark
with "MGM Studios," home of Garb, Crawford, Gable Tracy and Hepburn, Mickey
Rooney and Judy Garland. Similarly, when you see the distinctive shape of a bottle of
"Coca-Cola" you know, without having to read the label, what is in inside.
8
The Trade Marks Act, 1940

31
What Authors, Artists and other Creators Need to Know About Trademarks
How does trademark law affect authors, artists and other creators? Fortunately, the
First Amendment provides fairly broad protections for creators and their business
partners, provided, the unauthorized use of a trademark does not confuse people into
thinking that the use as authorized by the trademark owner. The following are some
brief examples of where the worlds of art and trademark law meet.
a. Trade Dress. A product's distinctive image is known in trademark law as "trade
dress." It can refer to a product' distinctive shape, color, graphics, sales technique, or
any combination of these elements that the purchasing public associates with a
particular source. The familiar cover design of "National Geographic Magazine, or the
series look of "Former’s Travel Guides," are examples of distinctive trade dress.
Trade dress is protectable under the same general theory that protects trademarks.
b. Titles. Titles, while not protected under copyright law, are sometimes protected
under trademark and unfair competition laws. However, one-shot titles, no matter how
clever they are, are not automatically entitled to trademark protection. To be
protected, titles must achieve "secondary meaning." Secondary meaning is akin to the
commercial magnetism of a title. As a rule, to be protected, titles must be "broadly
known." Series titles, unlike one-shot titles, make good trademarks candidates. In
addition, a title in one medium, will be protected in another.
c. Literary Characters. To the extent a literary character becomes associated with a
particular producer or source, it can be protected under trademark and unfair
competition laws -- even if the character is no longer protected by copyright. For
example, "Popeye," who made his first appearance in 1929 in a weekly cartoon strip
called "The Thimble Theatre," will slip unconscious into the public domain on
January 1, 2024. The fact the original "Popeye" character will fall into the public
domain, does not preclude King Features from claiming trademark rights in the
character, or protecting later strips or non-trivial changes to the original character.
However, it is debatable whether they could stop you from copying the public domain
strips if you carefully alerted purchasers that you were not doing it with the authority
of King Features, and it was a faithful reproduction.

32
d. Domain Names: Domain names, which are unique computer addresses assigned to
each computer on the Internet, are widely used by publishing, entertainment and
information companies. Unauthorized use of a "famous" mark as a domain name,
even in connection with an unrelated product or service, may violate someone's
trademark rights. One federal court stopped the use of the Internet address
"candyland.com" which offered sexually explicit material, because it tarnished
Hasbro's federally registered "Candy Land" trademark for children's games. Domain
names, provided they are used in commerce to identify products or services, may be
registered with the United States Patent and Trademark Office. In addition, recent
legislation has made it easier to combat "cyber squatters" -- individuals who
wrongfully register a domain name with the intention to resell the domain name to the
rightful owner.
e. Misuse of an Author's Names: Under federal and state unfair competition laws, an
author can sue for false advertising, or false designation of source, if their
contribution to a work is inaccurately described. Likewise, an author's rights may be
violated if they are attributed, without their consent, as the author of a substantially
altered version of their work. Of course, the changes must be broad enough to make
the new work materially different from the original. If the work is distributed outside
the United States, the author may also have a claim for violation of their "moral
rights."
Take the Trademark Infringement Test
Copyright infringement requires "substantial similarity" of protected elements,
whereas the test for traditional trademark infringement is "confusing similarity." That
is, the test for trademark infringement asks whether the ordinary buyer -- not looking
for subtle differences or fine details -- would believe both products (or services) came
from the same source. The key to trademark infringement is "likelihood of
confusion," i.e., whether two marks are sufficiently alike to cause consumer confusion
as to their source or origin. Courts consider the following factors in determining
likelihood of confusion:
1. Similarity of the conflicting marks;
2. Relatedness or proximity of the two companies;

33
3. Strength of the senior users mark;
4. Marketing channels used;
5. Degree of care likely to be used by purchasers in selecting the goods;
6. The "second comers" intent in selecting its mark;
7. Evidence of actual confusion;
8. Likelihood of expansion in product lines
Caution! The test for trademark infringement is somewhat pliant. Some factors are
given more weight than others, and the relative importance of each individual factor
will vary on a case-by-case basis. Moreover, these factors are not the only ones a
court may consider.
Copyrights vs. Trademarks: Related but Different
Copyrights and trademarks, which are sometimes confused, provide different forms of
protection. Copyright law protects the way authors and artists express facts and ideas
(but not the underlying facts and ideas). Unlike copyright law, trademark law protects
names, titles, short phrases and other symbols that distinguish the source of one
product (or service) from another. Trademarks -- which are a form of commercial
shorthand -- are important in a marketing sense because they establish goodwill
between a purchaser and seller. A service mark relates to services in the same way a
trademark relates to products.9
Just about anything that identifies and distinguishes products and services in the
marketplace can function as a trademark. A trademark can be a word, symbol,
distinctive phrase, design, product shape, combination of letters or numbers, or even a
sound or a smell that identifies and distinguishes particular goods from those of
others.
Unlike copyrights that exist from the moment of creation, trademarks generally
develop over a period of time -- gathering strength through public recognition. While
copyrights grow old, die and fall into the public domain, trademark rights can
continue indefinitely if there is continuous use, and the mark (shorthand for
trademark) is not permitted to lose its trademark significant by becoming a generic
term. Even the tests for copyright and trademark infringement differ.

34
9
The Copyright Law (amended and consolidated), Dhaka
It must be understood that a production of music, whether song wise or album wise
requires significant investment of money, talent and time and naturally, the artists,
involved, expect returns from their projects. But the awful nature of piracy destroys
those hopes and justified expectations. And since pirated copies of music have
become so easily accessible that consumers don't feel encouraged to go for the
genuine products, like buying an original CD and as a result investors and creative
individuals face huge loss. Actually piracy has become the virus that is eating up the
creative energy of the country's artisans and a great threat to the intellectual property
rights in Bangladesh. Research has found that piracy is often encouraged at musical
stores by vendors mostly due to the zero implementation of strict laws and to a greater
extent, due to lack of them. Worse of all, when songs are uploaded on various
website, the internet users can easily download them for free which deprives the
artists from their deserving remuneration.
This is a gross misconduct and a drain in the country's economy. The stakeholders of
our media industry now believe that enough is enough and the time has come finally
to take a step for betterment, once and for all. Because if this goes on forever, it'll
destroy country's potential of intellectual properties. Now what is Intellectual
Properties (IP)? IP is basically is a legal concept which refers to creations of the mind
for which exclusive rights are recognized and under intellectual property law, owners
are granted certain exclusive rights to a variety of intangible assets, such as musical,
literary, and artistic works along with discoveries and inventions; and words, phrases,
symbols, and designs. Copyright is a form of intellectual property; it protects the
rights of authors, i.e., creators of intellectual property in the form of literary, musical,
dramatic and artistic works and cinematograph films and sound recordings. It also
stimulates and encourages their new activities. Copyright protection begins
automatically from the date of creation.
To put it simply, Intellectual Property Rights (IPR) in totality requires the protection
of intangible assets, that is, intellectual property which is, in fact, intangible property
because it cannot be felt or touched like physical property. Intellectual property rights

35
IPR ensures that the products we buy are genuine. In the context of Bangladesh's
music industry, IPR is one of great importance.
A strong IPR system here in Bangladesh's music scene, ensures that both musicians
and production houses are rewarded for their ideas and efforts. And this will further
protect foster an environment in which creative musicians and innovative music
production industries can thrive and contribute to economic development of the
country. According to experts, the Bangladesh music market generates annual revenue
of more than Tk. 200 cores which is roughly around US$34 million and unofficially
the figures may be more than double if not triple. This music industry, many believe,
provides employment to well over 1 million citizens of the country, from artists to
musicians, producers, distributors, retailers, wholesalers, CD manufacturers, inlay
designers and printers, label manufacturers, audio- and video-recording studios,
ancillary support systems like sound and light companies, entertainment and even
management companies, decorators, banner and stage makers and the list can go on.
This means that musicians and other risk-takers play a critical role in the country's
economy and the protection of IPR is necessity to ensure that these efforts of the
musicians of this country are rewarded and valued. The illegal sale of pirated music in
nearly all of Bangladesh's markets is a troubling indicator which tells us that we need
IPR protection greater than ever. It'll be a mistake if it is thought that IPR only
benefits first world nations. According to experts and leading activists of this field,
this perspective unfairly discounts indigenous capacity for innovation, as if good ideas
worth protecting and promoting can only come from the first world. It is understood
that the human potential to create and innovate is a boundless worldwide resource and
many believe that clear rules and strong implementation of IPR allows countries to
sustain economic development and to build recognizable and respected brands
worldwide. The time has come to better the situation and all the artisan communities
and government, especially the Copyright Office and The Ministry of Cultural Affairs
and the private sector entities like Bangladesh Copyright and IP Forum or likeminded
organizations must come forward and work together in this issue of great importance.
According to experts, it is popularly believed that enforcement of copyright mainly
depends on judiciary and law enforcing authorities, but the initial role of making them
aware rests on fundamental institutions like Copyright Offices. Most musicians of this
country are not aware of their right which is why they are being very easily exploited.

36
There are laws like Bangladesh Copyright Act (2000) and Rule (2006) but many are
not aware of these laws and often times there seems to no implementation of these
laws. Experts believe that lack of awareness about the existing Copyright Law has
been the predominant reason for the ever increasing piracy in Bangladesh. Many
parties do not seem to comply with the copyright law and do not have an internal
compliance system in place, as far as media laws or copyright law are concerned. And
in the end it is the artists and musicians who suffer. In North America, for example,
there are associations like RIAA & CRIA, who are charged with overseeing all
copyright aspects and protecting the rights of the artists and their work is their top
priority.
For the cultural and economic development of a country, copyright and intellectual
property protection is very crucial and a necessity. Without proper copyright
protection, smooth social and cultural development is not possible. There is a long
way to go in terms of awareness, utilization and practice of copyright and protecting
intellectual property. In matters of music piracy, Bangladesh is one of the highest
rated countries in the world where musical creation of others are rampantly pirated. In
order to strengthen the protection if IP and to reduce the piracy rate, here it is
important that every educated citizen must have awareness and a basic understanding
of the notion of copyright and IP. With everyone's efforts this battle against piracy can
be won and IP of others can be protected.
Comparison between Bangladesh and Other country of Intellectual Property
Developments in intellectual property law in Asian countries have attracted less
attention over the last two decades than those of their more powerful and
commercially attractive neighbors China, Japan and India. This is in spite of a rather
long history of intellectual property principles in the region resulting from
colonization. The first intellectual property decree in the Philippines, for example,
was introduced by the Spanish colonial power as early as 1833. Today, the region
offers interesting insights into the relationship between intellectual property law and
various stages of economic development. In spite of the Asian crisis of 1997, some
Asian countries are undertaking serious efforts to establish themselves as players in
the intellectual property field rather than remaining mere recipients of principles and
policies developed elsewhere. This paper is intended as a follow up to a survey article
written for the European Intellectual Property Review in the early 1990s. It will

37
present most recent legislative developments in intellectual property law and the
difficulties in creating an institutional framework for the new laws. Some broader
trends visible in the region will be identified towards the end of the paper.
Two Decades of Change
Several features have contributed to the rapid change in the A intellectual property
landscape of the past few years. First, Asian was still much smaller in the early 1990s
than it is now. Vietnam, Cambodia, Laos and Myanmar were not yet members. Since
the enlargement of the mid-1990s, Asian has become a two-tier, less politically and
economically unified organisation and it has become common to speak of the “old
Asian six” (Indonesia, Malaysia, the Philippines, Thailand, Singapore and Brunei) and
the “new Asian four”. The enlargement can be seen as one of the reasons that attempts
to harmonies intellectual property laws within Asian have been difficult and not made
as much progress as some would have hoped for. The harmonization attempts will be
discussed further at the end of this paper.
Secondly, it is interesting to observe that some countries that had only a very basic
legislation in the late 1980s have made significant progress in establishing an
intellectual property system (for example Singapore and Malaysia) whereas others
that had a more complete set of intellectual property laws have slowed down
somewhat. Finally, the various intellectual property systems of Asian countries looked
more similar to each other in 1990 than they do now. In the late 1980s and early
1990s, all countries that were members of Asian at the time had come under
simultaneous pressures of the United States and European Union to introduce modern
intellectual property systems and to reform their colonial legislation. As a result, all
countries in the early 1990s were struggling with similar problems to implement
intellectual property laws quickly. Today, Asian countries are at quite different levels
of intellectual property development and a country such as Singapore faces very
different issues and problems than, for example, Laos and Cambodia. Apart from the
Asian enlargement, the more diverse Asian intellectual property landscape of recent
years has of course also to do with the TRIPS Agreement and the reaction of various
countries to it and more recently with the Free Trade Agreements concluded by the
US and others with countries of the region, which have targeted those economies that
are regarded as more successful.

38
Legislative and institutional reforms in individual countries
In this part, a brief outline of the major changes in national intellectual property
systems of the region will follow. Until the second half of the 1980s, Singapore had
no intellectual property system of its own and it relied on the re-registration of
intellectual property rights protected in the UK. It established a set of intellectual
property laws between 1987 and 2000 comprising copyright, trade mark and design
acts and an act protecting the layout-designs of integrated circuits. Different from
other countries in the region, but perhaps typically for Singapore, the country has also
managed to enforce the new rights effectively. Intellectual property law is now an
important part of legal education and an IP Academy for research and training has
been founded to assist with this task and to provide further training for the profession,
the IP administration and interested members of the public. Singapore has ambitious
plans in a number of areas that require intellectual property protection, in particular in
the field of biotechnology. In this context, it is important to note that Singapore does
not make use of the exception in of the TRIPS Agreement that allows member states
to exclude from patentability plants and animals other than microorganisms and
essentially biological processes for the production of plants or animals other than non-
biological and microbiological processes. According to Ng-Loy, the Select
Committee scrutinizing the Patents Bill reasoned that Patent Protection for plant and
non-human animal varieties was necessary to encourage research and investment into
horticulture, agriculture and biodiversity in Singapore. While under the terms of the
Singapore-US FTA, Singapore was required to join the UPOV Convention, it is no
longer allowed to use the exception of the TRIPS Agreement. The country has
meanwhile joined UPOV in July 2004.
The legislation in Malaysia is also complete and largely TRIPS compliant. The
intellectual property administration in the country has improved considerably since
the IP Office has been incorporated as a body corporate and a statutory body in 2003.
The new form of organisation gives the Malaysian Intellectual Property Office more
freedom to regulate its own affairs with regards to its employees and the use of its
funds, although the office remains under the directions and supervision of the
Minister of Domestic Trade and Consumer Affairs. Problems remain in the
enforcement sector and with the judiciary. Statistics show that the Malaysian courts

39
are overloaded and backlogged14. As in other countries of the region, discussions are
underway to form a specialized intellectual property court to solve this problem. And
while serious efforts have been made to improve the enforcement of intellectual
property rights, Malaysia is still struggling with its reputation as the world’s most
significant producer/exporter of pirated optical disk entertainment software. Malaysia
has strong ambitions in the fields of information technology and biotechnology. The
multimedia super corridor in Berjaya on the outskirts of Kualalumpur, which provides
favorable conditions and tax advantages for IT companies, is well known. The legal
framework for the further development of the IT sector improved at the end of the
1990s with the enactment of the Digital Signature Act, the Computer Crimes Act and
the Telemedicine Act, all of 1997, the Communications and Multimedia Act of 1998,
and various amendments to the Copyright Act.16 The latest mega project of the
government is Bio Valley Malaysia, a similar project to Berjaya in the field of
biotechnology, which is supposed to become operative in 2006. This follows the
establishment of a National Biotechnology Directorate (BIOTEK) under the Ministry
of Science, Technology and Environment (MOSTE), which in turn was followed by
the establishment of Biotechnology Cooperative Centers (BCC).
The Philippines is the country with the longest tradition of intellectual property
protection in the region, reaching back to decrees introduced by the Spanish colonial
power in the early 19th century. After a period of IP protection via Presidential
decrees during the Marcos regime, the Philippines was the first country in Southeast
Asia to adopt a comprehensive intellectual property code following WIPO models in
1995. The Code covers patents, utility models, trademarks and geographical
indications, copyright, industrial designs, layout designs of integrated circuits and
undisclosed information. There is separate legislation providing for plant variety
protection since 2002.
Thailand is a country where intellectual property has generated much controversy. In
the late 1980s, the debate about controversial changes to the Copyright Act to
strengthen the position of rights holders even led to a dissolution of parliament and
the calling of new elections19. The discussion subsequently shifted to patents and
pharmaceuticals during the 1990s. In view of the AIDS crisis in Thailand, the
government was much criticized for failing to use existing compulsory licensing

40
mechanisms for pharmaceuticals because it feared a negative impact on foreign
investment20. More recently, Thailand has made headlines by establishing the
region’s first specialized court for intellectual property and international trade law in
1996.
Interestingly, and as a significant diversion from the country’s civil law tradition, the
court has been allowed to draft its own rules of court rather than to effect changes
through an amendment of the civil and criminal procedural codes. Classical common
law remedies such as Anton Pillar orders and interlocutory injunctions drafted along
the lines of the American Cyanamid decision of the House of Lords in the UK have
been added to the repertoire of the court. The court is not completely specialized on
intellectual property matters, because it has also been given responsibility for
international trade law to counter initial fears that it would not generate a sufficient
workload. Statistics show that this fear was unfounded. The workload of the court
almost doubled between 2000 and 2004, although the majority of the intellectual
property cases were criminal cases rather than civil suits.
Indonesia completed the main parts of its intellectual property legislation during the
1990s and introduced a complete new set of laws between 2000 and 2002 to become
TRIPS compliant. As so many other areas of law, intellectual property development
has also been affected by the political and economic upheavals the country has been
going through since the late 1990s. On the one hand, piracy rates have been on the
rise again due to increased poverty and the ease with which money can be made from
pirated products. On the other hand, the greater political openness and diversity has
also meant that the task force approach of the past, where intellectual property
reforms could be pushed through easily without worrying about opposition, is no
longer as easy. As in the past, the implementation of the laws remains to be hindered
by a large number of implementing decrees that often take years to be issued.
Political liberalization in Indonesia has also meant decentralization and the transfer of
greater decision making powers to the provinces and districts. These reforms have
also had some effect in the intellectual property field. The government has finally
introduced the long promised branch agencies of the intellectual property office by
authorizing local branch offices of the Ministry of Justice to receive applications for
the registration of intellectual property rights. Available since 2001, the submission of

41
applications at such branch offices has been particularly popular with trade mark
owners.
Brunei as the last of the “old Asian six” is a small and oil-rich country and obviously
not a major player in intellectual property matters at this stage. It replaced the colonial
laws providing for local re-registration of UK rights during 1999 and 2000 with a new
Trade Marks Act and with Orders on Patents, Copyright, Industrial Designs and
Layout-Designs of Integrated Circuits. If we then turn from the more developed Asian
Six to the new members of the Asian Four, the picture is more similar to that
presented by some of the old Asian members some fifteen years ago.
Vietnam has the most advanced system of the newcomers. It began to move away
from socialist style inventor certificates in 1995, when it took the unusual step of
incorporating a framework legislation on intellectual property rights into its new Civil
Code. The Civil Code has chapters on copyright, industrial property and on
technology transfer. However, the legislation is really a skeletal framework only. For
details, one has to look further to a large number of implementing decrees. The
decrees are not always consistent, sometimes they contradict each other and at other
times they overlap leading to uncertainties in the application of the law. Therefore, the
government has prepared a comprehensive legislation in the form of an intellectual
property code. The Vietnamese National Assembly passed the new Intellectual
Property Law at the end of 2005 and it will come into force in July 2006. Vietnam
also acceded to the Berne Convention at the end of 2004, thereby completing the
international protection of intellectual property rights in the country.
On the other hand, Bangladesh is a country where Intellectual property has no
tradisonal system. Very sadly, though, as the time progresses, the artists in the music
industry are systematically deprived from their honorariums and royalties, or in other
words, from the very respect, honor and financial return for their hard labor that they
deserve which is unquestionably unjust, wrong and excruciatingly unethical. And this
wrongdoing is taking place by violating the integrity of intellectual property rights
and abusing the copyright process where artist's songs and albums are pirated and
marketed indiscriminately, violating legal norms and judicial basis and often times

42
circulated and aired without prior authorization of the artists or bands. And the
situation in Bangladesh in this regard is alarmingly worsening. According to the
International Property Rights Index 2011 Report, in terms of Intellectual Property (IP)
protection, Bangladesh positions itself at 125th out of 129 countries. And as far as
piracy is concerned, it is an uncontrolled issue that affects the intellectual property of
Artists, musicians, composers alike who are being victimized by this unfair practice
by vested quarters of the industry which is also harming the economy in great deal.
According to experts, based on an online report published by Havoc scope Black
Markets which is an online database of black market activities, the music piracy
market value in Bangladesh stands at US$ 180 million which is 11 times higher than
our neighboring country India.
It must be understood that a production of music, whether song wise or album wise
requires significant investment of money, talent and time and naturally, the artists,
involved, expect returns from their projects. But the awful nature of piracy destroys
those hopes and justified expectations. And since pirated copies of music have
become so easily accessible that consumers don't feel encouraged to go for the
genuine products, like buying an original CD and as a result investors and creative
individuals face huge loss. Actually piracy has become the virus that is eating up the
creative energy of the country's artisans and a great threat to the intellectual property
rights in Bangladesh. Research has found that piracy is often encouraged at musical
stores by vendors mostly due to the zero implementation of strict laws and to a greater
extent, due to lack of them. Worse of all, when songs are uploaded on various
website, the internet users can easily download them for free which deprives the
artists from their deserving remuneration.
This is a gross misconduct and a drain in the country's economy. The stakeholders of
our media industry now believe that enough is enough and the time has come finally
to take a step for betterment, once and for all. Because if this goes on forever, it'll
destroy country's potential of intellectual properties. Now what is Intellectual
Properties (IP)? IP is basically is a legal concept which refers to creations of the mind
for which exclusive rights are recognized and under intellectual property law, owners
are granted certain exclusive rights to a variety of intangible assets, such as musical,
literary, and artistic works along with discoveries and inventions; and words, phrases,

43
symbols, and designs. Copyright is a form of intellectual property; it protects the
rights of authors, i.e., creators of intellectual property in the form of literary, musical,
dramatic and artistic works and cinematograph films and sound recordings. It also
stimulates and encourages their new activities. Copyright protection begins
automatically from the date of creation.
To put it simply, Intellectual Property Rights (IPR) in totality requires the protection
of intangible assets, that is, intellectual property which is, in fact, intangible property
because it cannot be felt or touched like physical property. Intellectual property rights
IPR ensures that the products we buy are genuine. In the context of Bangladesh's
music industry, IPR is one of great importance.
A strong IPR system here in Bangladesh's music scene, ensures that both musicians
and production houses are rewarded for their ideas and efforts. And this will further
protect foster an environment in which creative musicians and innovative music
production industries can thrive and contribute to economic development of the
country. According to experts, the Bangladesh music market generates annual revenue
of more than Tk. 200 cores which is roughly around US$34 million and unofficially
the figures may be more than double if not triple. This music industry, many believe,
provides employment to well over 1 million citizens of the country, from artists to
musicians, producers, distributors, retailers, wholesalers, CD manufacturers, inlay
designers and printers, label manufacturers, audio- and video-recording studios,
ancillary support systems like sound and light companies, entertainment and even
management companies, decorators, banner and stage makers and the list can go on.
This means that musicians and other risk-takers play a critical role in the country's
economy and the protection of IPR is necessity to ensure that these efforts of the
musicians of this country are rewarded and valued. The illegal sale of pirated music in
nearly all of Bangladesh's markets is a troubling indicator which tells us that we need
IPR protection greater than ever. It'll be a mistake if it is thought that IPR only
benefits first world nations. According to experts and leading activists of this field,
this perspective unfairly discounts indigenous capacity for innovation, as if good ideas
worth protecting and promoting can only come from the first world. It is understood
that the human potential to create and innovate is a boundless worldwide resource and
many believe that clear rules and strong implementation of IPR allows countries to

44
sustain economic development and to build recognizable and respected brands
worldwide. The time has come to better the situation and all the artisan communities
and government, especially the Copyright Office and The Ministry of Cultural Affairs
and the private sector entities like Bangladesh Copyright and IP Forum or likeminded
organizations must come forward and work together in this issue of great importance.
According to experts, it is popularly believed that enforcement of copyright mainly
depends on judiciary and law enforcing authorities, but the initial role of making them
aware rests on fundamental institutions like Copyright Offices. Most musicians of this
country are not aware of their right which is why they are being very easily exploited.
There are laws like Bangladesh Copyright Act (2000) and Rule (2006) but many are
not aware of these laws and often times there seems to no implementation of these
laws. Experts believe that lack of awareness about the existing Copyright Law has
been the predominant reason for the ever increasing piracy in Bangladesh. Many
parties do not seem to comply with the copyright law and do not have an internal
compliance system in place, as far as media laws or copyright law are concerned. And
in the end it is the artists and musicians who suffer. In North America, for example,
there are associations like RIAA & CRIA, who are charged with overseeing all
copyright aspects and protecting the rights of the artists and their work is their top
priority. For the cultural and economic development of a country, copyright and
intellectual property protection is very crucial and a necessity. Without proper
copyright protection, smooth social and cultural development is not possible. There is
a long way to go in terms of awareness, utilization and practice of copyright and
protecting intellectual property. In matters of music piracy, Bangladesh is one of the
highest rated countries in the world where musical creation of others are rampantly
pirated. In order to strengthen the protection if IP and to reduce the piracy rate, here it
is important that every educated citizen must have awareness and a basic
understanding of the notion of copyright and IP. With everyone's efforts this battle
against piracy can be won and IP of others can be protected.
Development and Necessity of Intellectual Property Laws
The components of Intellectual Property system contribute to the social, economic
and human development of a country. Industrial design protection encourages people
with creative faculty to devote their talent and energy in developing new designs for

Application Of Intellectual Property Law Bangladesh Perspective

Application Of Intellectual Property Law Bangladesh Perspective

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