Comprehending the Application of Intellectual Property Law in Internet Marketing Strategies within Bangladesh

Online business platforms in Bangladesh have experienced significant growth recently due to the increasing usage of the internet. [1] These platforms serve as marketplaces where products can be bought and sold entirely online.[2] Intellectual property rights, on the other hand, refer to the privileges individuals have over their creations.[3] Often, they provide the inventor the sole right to make use of his creation for a predetermined amount of time.[4] Using intellectual property rules is important to protecting online businesses’ privacy as they become more and more popular.[5] It protects internet platforms’ entities and business interests against unfair competition so that in the absence of its practice the creation could not be stolen. [6] However, the application of intellectual property laws in Bangladesh is limited, which poses a potential threat to the country’s e-commerce industry.[7] Therefore, it is necessary to concentrate on implementing intellectual property law in Bangladesh’s internet market.[8]

IP law addresses rights to patents, copyrights, trademarks, trade secrets, and other intellectual property.[9] In this regard, Bangladesh has adopted the Copyright Act, of 2000 (amended in 2005), the Patent and Design Act, of 1911, the Trademarks Act, of 2009, and the Geographical Indication (Registration and Protection) Act, of 2013. [10] However, Bangladesh lacks a unified legal framework and a clear definition of electronic commerce. [11]According to the World Trade Organization, “e-commerce” refers to “the production, distribution, marketing, sales, or delivery of goods and services by electronic means,” which includes digital data processing and transmission.[12]

Original databases, software, and computer programs that are accessible on online platforms are legally protected by copyright.[13] In other words, it might be said that online platforms encounter difficulties with copyright-related legal matters when they produce software or mobile applications, make websites, write blog entries, and so on.[14] As a result, the software that the e-commerce website has to use is subject to copyrighted work.[15] According to the Copyright Act in Bangladesh along with literary, dramatic, musical, and artistic work computer programs are also included.[16] The Bill named Copyright Act, 2023 has been passed in light of the enormous technological advances that have occurred over the past 20 years and by this act, computer-based activities have been brought under the law, which was not the case earlier. [17]Since digital content is so widely available, it is simple for people to distribute and reproduce works protected by copyright without the owner’s consent and these violations can seriously harm online businesses by resulting in lost sales and harming their reputation.[18] Few actions have been taken against copyright infringement on digital platforms. [19] International organizations must initiate the uniformization of the law. [20]There are certain situations when customers use software residing in various nations that create an obstacle to the law’s ability to be applied.[21]

Most of the time, the issue of patent infringement in e-commerce concerns the software and the business method.[22] In this situation, figuring out which business practices are patentable is the true challenge. [23] Due to a lack of efficient steps, the well-known case involving Amazon.com Inc. and Bernesandnoble.com Inc. divided the US and the EU over the issue of patent protection.[24] Bangladesh Patent & Design Act, 1911, permits the patent of both goods and processes, in legal terms, it is written `patented article or process’ but does not lay down any specific criteria of patentability of an invention nor even define the `process’.[25] The provision of the patentability of business methods also includes the question of the patentability of software but there is no mention of the patentability of the software in the existing patent law of Bangladesh whereas it is a very important issue for the sharply growing e-commerce.[26]

The most frequent case concerns the domain name when the question is about Trademark infringement relating to transaction information.[27] For instance, A1 Software Limited, a Bangladeshi company that also happened to be Facebook’s domain name registrant (dot bd), was recently sued by Facebook.[28] In this case, businesses may engage in similar or dissimilar commercial endeavors, but the fundamental concept is that one of the businesses seeks to confuse consumers to increase sales. [29]However, the problem is the Trademark Act, of 2009 says a foreign company can register a trademark in Bangladesh but the company must have an address for the service and before registering a trademark an advertisement has to be published stating the acceptance of the application.[30] There are more than 50,000 eCommerce Facebook pages in Bangladesh, many of which are run by small companies that use Facebook only for product advertising and sales, ranging from clothes to beauty products, to food. [31] In this context, concerns can be raised concerning Facebook’s office address in Bangladesh, as well as public advertisements on the subject.[32]

Trade secrets are a vital right in the online business sector since they deal with misappropriations of secrets rather than infringements. [33]It contains sales methods, distribution methods, consumer profiles, advertising strategies, lists of suppliers and clients, and manufacturing processes someone stole the secret and used. [34]The Coca-Cola Company realized that keeping the formula as a trade secret would serve its purpose best as they foresaw an endless market for their product, the formula they currently use has been maintained a secret for more than a century and is the best-kept trade secret worldwide. [35] The legislation of Bangladesh protects Trade Secrets to some extent, although not very well. [36] The Patent and Designs Act 1911 prohibits the sharing of information regarding industrial designs and such in bad faith. [37]However, these existing laws are not modern enough to serve e-commerce and are also not applicable to all trade secrets.[38] On the other side, The US enacted the Economic Espionage Act of 1996 for trade secrets and offenses such as misappropriation-related crimes, worldwide offenses such as business competitors across borders, and transactional criminal organizations attempting to steal data through cyber-enabled means are among the uses for it.[39]

M-Commerce (mobile commerce) and F-Commerce (Facebook commerce) have become two prevalent ideas in the modern e-business sector.[40] When it comes to creating a page on Facebook, owners do not need to submit that much information; however, uncertainty in identity raises the possibility of infringement of consumers’ rights. [41]The majority of online traders remain careless about having electronic business identification numbers (e-BIN) or renewing commercial licenses.[42] Being prepared with a valid domain, trademarks, copyrights, and so on will help secure intellectual property.[43] In this crisis, Bangladesh is currently at a disadvantage regarding international recognition, and the speed of its trademark registration process leads to a high risk for Intellectual Property rights in the e-commerce industry.[44]

Both E-Commerce and Intellectual Property intersect, and courts and tribunals around the world are having difficulty deciding the governing law and determining jurisdiction because the internet disregards the physical location of the parties; after all, transactions in cyberspace are not geographically based.[45] There is no international jurisdiction law with a uniform and universal applicability, and such questions are generally regarded as matters of conflict of laws or private international law.[46]

To modernize copyright protection in cyberspace in 1996, the World Intellectual Property Organization (WIPO) adopted the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) commonly referred to as the ‘Internet Treaties’.[47] Policy-making and legal obstacles, such as disputes over the territoriality of Intellectual Property systems, dormant government plans, ensuring global rights to multimedia, concerns about consumer protection, and so forth, must be overcome to carry out these treaties.[48] Bangladesh has not been the signatory State of these Internet Treaties.[49] However, as a WIPO member, Bangladesh is among the developing countries and territories that have received WIPO assistance with their national copyright legislation, including the implementation of WCT and WPPT.[50]

According to the data provided by the Dublin-based trade research institution ResearchAndMarkets.com, the e-commerce market size in Bangladesh in 2021 was approximately Tk56,870 crore and is expected to be approximately Tk1.5 lakh crore by 2026.[51] Intellectual property (IP) is essential because valuable goods traded online need to be safeguarded by IP laws and technological security measures to prevent theft and piracy, which might destroy entire businesses.[52] Also, IP is important in making E-Commerce operate; the systems that allow the internet to function software, networks, designs, chips, routers and switches, the user interface, and so on are all aspects of IP that are often protected by IP rights. [53]However, from the above discussion, it is understood that the IP law is not able to meet the needs of modernity in proportion to the needs of online business and is becoming an obstacle in the way of the financial development of the country.[54] Although WIPO has taken some steps by Internet Treaties, it is not being complemented by various challenges.[55] On the other hand, Bangladesh does not yet have the complete competence and economic strength to withstand the onslaught of the intellectual property rights system since Bangladesh’s technological effort is zero, which means minimal.[56] In this critical situation, International Organizations have the responsibility to promote the uniformization of the law and without the support of the people and government, however, such actions could never have contributed significantly to the emergence of the e-commerce era.[57]

1 ‘What Is Online Business? Definition and Examples’ (Market Business News,1 November 2021) <https://marketbusinessnews.com/financial-glossary/what-is-online-business/> Accessed 15 September 2023

[2] ‘Buying and Selling Online’ (Support for Businesses in Australia, 7 March 2023) <https://business.gov.au/online/buying-and-selling-online> Accessed 15 September 2023

[3] ‘World Trade Organization’(WTO) <https://www.WTO.org/English/tratop_e/trips_e/intel1_e.htm> Accessed 16 September 2023

[4] Ibid

[5] Syeda Fauzia, ‘Role of Ip in E-Commerce’ (Enhelion Blogs, 7 February 2022) <https://enhelion.com/blogs/2022/02/07/role-of-ip-in-e-commerce/#:~:text=as%20the%20growth%20of%20online,share%20of%20the%20company’s%20profits.> Accessed 16 September 2023

[6]‘Intellectual Property Rights in E-Commerce’ (Kipg – A Globally Recognized Law Firm,11 October 2021) < https://www.kashishworld.com/blog/intellectual-property-rights-in-e-commerce/> Accessed 17 September 2023

[7] Ibid

[8] Ibid

[9] Esrat Jahan And Md. Rajib Hasnat Shakil, ‘The Enforcement of Intellectual Property Rights In

Bangladesh’ [2018] Vol. 8, No. 1, Pp – 62-85 Social Change < https://ypsa.org/ypsa/wp-content/uploads/2021/09/the-enforcement-of-intellectual-property-rights-in-bangladesh.pdf> Accessed 28 December, 2023

[10] ‘Bangladesh And Intellectual Property’ (Intellectual Property Rights Ipr, 2023) < http://bangladeshcustoms.gov.bd/trade_info/intellectual_property_rights#:~:text=copyright%20act%2c%202000%20(amended%20in, registration%20and%20protection) %20act%2c%202013 > Accessed 28 December 2023

[11] Tyaba Tasmin Turag, ‘Regulatory Framework of Doing Online Business in Bangladesh: Problems and Prospects’ (Bangladesh Law Digest, 1 August 2021) <https://bdlawdigest.org/regulatory-framework-of-doing-online-business-in-bangladesh-problems-and-prospects.html> Accessed 28 December 2023

[12] Andriamirado Rakoto, ‘The Protection of Intellectual Property Rights in E-Commerce’

(Shanghai University of Finance and Economics) < https://papers.ssrn.com/sol3/papers.cfm> Accessed 28 December 2023

[13] Ibid

[14]Jim Chester, ‘Understanding and Protecting Ip in Ecommerce Business’ (Klemchuk, 16 September 2021) <https://www.klemchuk.com/ideate/ip-in-ecommerce> Accessed 28 December 2023

[15] Ibid

[16] Copyright Act, 2000 (amended in 2005)

[17] ‘Copyright Bill 2023 Passed in JS to Widen the Scope for Protection’ (The Business Standard, Thursday, 28 December 2023) < https://www.tbsnews.net/bangladesh/copyright-bill-2023-passed-js-widen-scope-protection-698762> Accessed 28 December 2023

[18] Osman Gani Tuhin, ‘Securing Your Online Business from Intellectual Property Infringement’ (16 January 2023) < https://www.linkedin.com/pulse/securing-your-online-business-from-intellectual-property-tuhin> Accessed 31 December 2023

[19] Ibid

[20] Andriamirado Rakoto, ‘The Protection of Intellectual Property Rights in E-Commerce’ (Shanghai University of Finance and Economics) < https://papers.ssrn.com/sol3/papers.cfm> Accessed 28 December 2023

[21] Ibid

[22] Ibid

[23] Ibid

[24] Ibid

[25] Mohammad Sayeedur Rahman, ‘Consistency of Bangladesh Patent Law with Trips’ (Bangladesh Patent Law. Rahman M. S., 2016) <https://bim.portal.gov.bd/sites/default/files/files/bim.portal.gov.bd/page/09f3e9a8_0cca_4a71_adb5_ee7082521b3a/vol%2030%20no%201%262%2c%20january-june%202016_article_07.pdf> Accessed 29 December 2023

[26] Ebay Inc. V. Mercexchange L.L.C. [2006] Ct. 1837, 2006,

Kennedy, J., And Alice Corp. V. CLS Bank International [2014]

[27] Andriamirado Rakoto, ‘The Protection of Intellectual Property Rights in E-Commerce’ (Shanghai University of Finance and Economics) < https://papers.ssrn.com/sol3/papers.cfm> Accessed 28 December 2023

[28] Saiful Bari, ‘Facebook’s Case in Bangladesh: A Legal Analysis’ (The Business Standard, 30 November 2020) <https://www.tbsnews.net/thoughts/facebooks-case-bangladesh-legal-analysis-164917> Accessed 29 December 2023

[29] Andriamirado Rakoto, ‘The Protection of Intellectual Property Rights in E-Commerce’ (Shanghai University of Finance and Economics) < https://papers.ssrn.com/sol3/papers.cfm> Accessed 28 December 2023

[30] Trademark Act 2009, S 15(4), 17

[31]‘Bangladesh – Country Commercial Guide’ (International Trade Administration, 20 July 2022) <https://www.trade.gov/country-commercial-guides/bangladesh-ecommerce> Accessed 29 December 2023

[32] Saiful Bari, ‘Facebook’s Case in Bangladesh: A Legal Analysis’ (The Business Standard, 30 November 2020) <https://www.tbsnews.net/thoughts/facebooks-case-bangladesh-legal-analysis-164917> Accessed 29 December 2023

[33] ‘Introduction to Trade Secrets’ (Luedeka Neely) < https://www.lng-patent.com/introduction-to-trade-secrets/#:~:text=trade%20secrets%20may%20include%20manufacturing,lists%20of%20suppliers%20and%20clients.> Accessed 30 December 2023

[34] Ibid

[35] Md. Moniruzzaman, ‘Coca-Cola’s Secret Formula: A Trade Secret Kept for more than a Century’ (Bangladesh Journal of Legal Studies, 18 March 2016) < https://bdjls.org/coca-colas-secret-formula-trade-secret-kept-century/> Accessed 31 December 2023

[36] Alfred Christopher D’silva, ‘Protection of Trade Secret’ The Daily Star (Bangladesh, 28 November 2017) <https://www.thedailystar.net/law-our-rights/protection-trade-secret-1497535> Accessed 30 December 2023

[37] The Patent and Designs Act 1911, S 49

[38] Mehadi Hasan, ‘The Protection of Trade Secret and Legal Instruments’ (The Business Standard, 19 March 2021) <https://www.tbsnews.net/thoughts/protection-trade-secret-and-legal-instruments-218902> Accessed 30 December 2023

[39] Ibid

[40] Tahmidur Rahman, ‘E-Commerce Company Formation in Bangladesh| Complete Overview of Starting an E-Commerce Business’< https://tahmidurrahman.com/e-commerce-business-in-bangladesh/> Accessed 31 December 2023

[41]Dr. Sayeda Anju, ‘E-Business in Bangladesh: Need for A Legal Framework’ The Daily Star (Bangladesh, 20 July 2021) <https://www.thedailystar.net/law-our-rights/law-watch/news/e-business-bangladesh-the-need-legal-framework-2134561> Accessed 31 December 2023

[42] Ibid

[43] Tahmidur Rahman, ‘E-Commerce Company Formation in Bangladesh| Complete Overview of Starting an E-Commerce Business’< https://tahmidurrahman.com/e-commerce-business-in-bangladesh/> Accessed 31 December 2023

[44]Labiba Wahab, ‘Intellectual Property Protections in Bangladesh’ (India Briefing, 13 May 2021) < https://www.india-briefing.com/news/intellectual-property-protections-in-bangladesh-brief-primer-foreign-investors-22274.html/> Accessed 31 December 2023

[45] Arvind M Velu, ‘Ip Disputes in E-Commerce – A Jurisdictional Dilemma’ (Manupatra Intellectual Property Reports, April 2016) < https://www.altacit.com/ip-management/ip-disputes-in-e-commerce-a-jurisdictional-dilemma/> Accessed 31 December 2023

[46] Ibid

[47] Mazharul Islam, ‘Protecting Rights of Performers on Digital Networks’ The Daily Star (Bangladesh, 31 August 2021) <https://www.thedailystar.net/law-our-rights/rights-advocacy/news/protecting-rights-performers-digital-networks-2165006> Accessed 30 December 2023

[48] Lucinda Jones, ‘Intellectual Property & E-Commerce’ (World Intellectual Property Organization, November 2003) < https://www.wipo.int/edocs/mdocs/sme/en/wipo_ip_bis_ge_03/wipo_ip_bis_ge_03_5.pdf> Accessed 30 December 2023

[49] Ibid

[50] Dr. M. Kamal Uddin, ‘Draft Report on Draft Report On

Innovation and Intellectual Property Innovation and Intellectual Property Intellectual Property Policy and Strategy Policy and Strategy for Bangladesh’ (A Project of World Intellectual Property Organization, WIPO) <https://dpdt.portal.gov.bd/sites/default/files/files/dpdt.portal.gov.bd/notices/ae07f046_c5ad_497b_9ef8_d60ce413f76c/ip%20policy.mku.pdf> Accessed 30 December 2023.

[51] Rezaul Karim, ‘Bangladesh E-Commerce Sales to More Than Double By 2026: Research’ (The Business Standard, 15 September 2022) < https://www.tbsnews.net/economy/bangladesh-e-commerce-sales-more-double-2026-research-497134> Accessed 31 December 2023

[52] Arturo Ancona, ‘Intellectual Property and E-Commerce’ (WIPO-Wasme Special Program on Practical IP Issues, October 2003)

<https://www.wipo.int/edocs/mdocs/sme/en/wipo_wasme_ipr_ge_03/wipo_wasme_ipr_ge_03_13-main1.pdf> Accessed 31 December 2023

[53] Ibid

[54] Dr. M. Kamal Uddin, ‘Draft Report on Draft Report on Innovation and Intellectual Property Innovation and Intellectual Property Intellectual Property Policy and Strategy Policy and Strategy for Bangladesh’

 (A Project of World Intellectual Property Organization, WIPO) <https://dpdt.portal.gov.bd/sites/default/files/files/dpdt.portal.gov.bd/notices/ae07f046_c5ad_497b_9ef8_d60ce413f76c/ip%20policy.mku.pdf> Accessed 30 December 2023.

[55] Lucinda Jones, ‘Intellectual Property & E-Commerce’ (World Intellectual Property Organization, November 2003) < https://www.wipo.int/edocs/mdocs/sme/en/wipo_ip_bis_ge_03/wipo_ip_bis_ge_03_5.pdf> Accessed 30 December 2023

[56] Dr. M. Kamal Uddin, ‘Draft Report on Draft Report On

Innovation and Intellectual Property Innovation and Intellectual Property Intellectual Property Policy and Strategy Policy and Strategy for Bangladesh’ (A Project of World Intellectual Property Organization, WIPO) <https://dpdt.portal.gov.bd/sites/default/files/files/dpdt.portal.gov.bd/notices/ae07f046_c5ad_497b_9ef8_d60ce413f76c/ip%20policy.mku.pdf> Accessed 30 December 2023.

[57] Andriamirado Rakoto, ‘The Protection of Intellectual Property Rights in E-Commerce’ (Shanghai University of Finance and Economics) < https://papers.ssrn.com/sol3/papers.cfm> Accessed 28 December 2023