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TICFA and Intellectual Property

A B M Hamidul Mishbah
 TICFA and Intellectual Property

Bangladesh and the United States of America have signed the Trade and Investment Cooperation Forum Agreement (TICFA) on November 25, 2013. The treaty has been signed to ensure a platform for Bangladesh and the USA 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 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 sensitized 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 Intellectual Property Rights within 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”. Bangladesh and the USA 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 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 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 already provided therein. Likewise the Berne Convention, to which Bangladesh has been a signatory sinceFebruary 04, 1999, provides for the protection of the rights of authors (creators) in their literary and artistic works.

Bangladesh however has formulated her own set of IPR legislations, i.e. Copyright Act 2000, Trademarks Act 2009 and the recently adopted Geographical Indications Act 2013, that are all, except the Patents and Designs Act 1911, in line with the major international IPR Treaties such as 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 its system by default.

More over, it would be noteworthy to mention that TICFA in Article 5 clarifies that the provisions of the bilateral Agreement are not in prejudice or deterrence to theexisting laws of the countries or to their rights, obligations and privileges under any other Agreement. This adequately assures that the exemption (until July 01, 2012) Bangladesh is enjoying as a LDC country to implement TRIPS within its jurisdiction along with other rights and privileges, if any, 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’s commitment already 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 hypersensitive quarters.  

September 16, 2015
About Author

The author is an IP Practitioner and advocate at the Supreme Court of Bangladesh

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