On November 25, 2013, Bangladesh and the US have signed the “Trade and Investment Cooperation Forum Agreement (TICFA).” The treaty has been signed to ensure a platform for Bangladesh and the US to formally engage in regular discussions, explore opportunities of bilateral trade and investments and identify and overcome barriers to increase bilateral trade and investment between these two countries.
One of the main aspects of TICFA is that the treaty, in addition of fostering bilateral trade and investment, acknowledges the importance of compliance of Intellectual Property Rights (IPR) in accordance with the national laws and the international treaties that are applicable to these countries.
This, nonetheless, sensitised various quarters including the members of the civil societies, activists and the edified citizens, who are concerned that TICFA will have a far-reaching impact in terms of the implementation of the IPR in Bangladesh.
TICFA in its preamble states: “Recognizing the importance of providing adequate and effective protection and enforcement of intellectual property rights and adherence to intellectual property rights norms, in accordance with the World Trade Organization (WTO) Agreement on TRIPS, the Berne Convention, and any other IPR related international agreements as applicable to the parties.”
It would be complimentary to refer that Bangladesh and the US are signatories of both the WTO Agreement on Trade Related Aspect of Intellectual Property Rights (TRIPS) and the Berne Convention, and hence are pledge bound to observe the rights and obligations conferred thereto.
TRIPS member states, in addition, have the obligation of implementing the provisions of TRIPS within their own legal system. The obligation however, does not inhibit their freedom to choose the appropriate approach or framework for implementing such provisions within their national laws. TRIPS also ensures that the member states treat the nationals of other member state equally as it would treat its own nationals with regard to the protection of IPR, subject to the exceptions provided therein.
Likewise the Berne Convention, to which Bangladesh has been a signatory since February 4, 1999, provides for the protection of the rights of the authors (creators) in their literary and artistic works.
Bangladesh, however, has formulated her own set of IPR legislations, ie Copyright Act, 2000, Trademarks Act, 2009 and the recently adopted Geographical Indications Act, 2013, these are all, except the Patents and Designs Act 1911, in line with the major international IPR Treaties, ie TRIPS and the Berne Convention. The existence of national IPR laws, in addition to the international treaties on IPR, compounds Bangladesh to comply with and enforce IPR within her legal system by default.
To this extent, any individual or entity that has registered its respective Intellectual Properties under the IP laws of Bangladesh shall enjoy protection of the same within the jurisdiction of Bangladesh, as the ‘Principle of Territoriality’ applies. This notion shall equally apply to other countries including the US.
This means, intellectual properties registered under the laws of the US shall enjoy protection within the US only, unless a party wants to avail the facilities provided under various multilateral treaties, ie Patent Cooperation Treaty (PCT), Madrid Protocol System (for Trademarks), etc, to which the respective country has become a party or member.
Bangladesh has not joined the PCT or Madrid Protocol System and hence is not eligible to avail the facilities provided thereunder. Therefore, in order to secure protection internationally, the respective countries have to rely on the provisions of the international treaties they have signed.
Moreover, it is important to mention that, TICFA in its Article 5 clarifies that the provisions of the bilateral Agreement are not in prejudice or deterrence to the existing laws of the countries or to their rights, obligations and privileges provided under any other agreements.
This, coupled with the applicability of the national laws and the international treaties, adequately guarantees that the sovereignty of the national laws will prevail and the exemption until July 1, 2012, which Bangladesh is enjoying as a LDC country to do away with the implementation of TRIPS within its jurisdiction, along with other rights and privileges, will continue to remain valid and in full force.
TICFA, therefore, so far the compliance and enforcement of IPR is concerned, is just another piece of legal instrument that reiterates Bangladesh and the US’ commitment made at the WTO level, and does not seem to have any further or fresher impact in Bangladesh’s IPR scenario as it has been contemplated by some hyper sensitive intellectuals.