There is no interconnection and thus check and balance amongst licensing/registering authority in Bangladesh to avoid giving registration of a private limited Company/firms or issuing a trade license with the same name which has already been registered under Trademark. Such loopholes amongst the Government authorities’ lacks good governance and creating huge disputes amongst commercial establishments and business owners are somehow unjustifiably suffering more than they deserve due to their failure of taking trademark registration. Is there any solution to minimise the sufferings of entities apart from having a timely trademark registration?
A Company in Bangladesh can be registered under the Companies Act, 1994 which creates a separate legal entity or an artificial judicial person. The Office of the Registrar of Joint Stock Companies and Firms (“RJSC”) under the Ministry of Commerce, Bangladesh is the controlling body of the Companies in Bangladesh, sole authority to facilitate formation of Companies etc. and keeps track of all ownership related issues. Person/persons interested to open a Company first required taking a name clearance certificate for the proposed name of the Company which the RJSC provides upon completing a search on the availability of the proposed name. Upon obtaining name clearance certificate, the Company can then be registered completing other formalities. Once registered the RJSC issues a Certificate of Incorporation which is mandatory to operate a Company in Bangladesh subject to obtaining other relevant licenses/certificates from other concerned authorities like Trade License, Tax Identification Number, Business Identification number, Bank account etc.
Trademark Registration is an intellectual property registration under the Trademark Act, 2009 of Bangladesh. Although taking trademark registration is not mandatory under the law but such registration of Trademark provides ownership of intellectual property, rights to exclusive use of the registered trademark including legal protection for possible trademark infringement. Amongst others, business names can be registered under trademark.
It is not the case that only a registered company with RJSC can apply for trademark registration rather any Company, Proprietorship concern, Firm, Society etc. can apply to register the name and logo of their business for protection. The Department of Patent, Design and Trademarks (“DPDT”) under the Ministry of Industry, Bangladesh is the sole authority to provide trademark registration and also ensures protection of such rights. DPDT also provides the opportunity to search the availability of the proposed name/marks etc. which is prudent before submitting a trademark application. No one even can submit a name or brand logo for registration while a previous application with the same name/brand logo is pending for registration.
Rising trademark disputes: points to discuss and consideration
For the purpose of this Article, I will not discuss much about common trademark infringement but will try to point out the reason of such rising disputes in Bangladesh and possible solutions.
It is true that once a Company is registered, the RJSC will not allow any other entity to be registered with the same name or similar name as per the provisions of the Companies Act, 1994 but the same or similar name of that entity can still be used by other proprietorship firm etc.
Let’s now consider a practical situation. A Company namely ABCD Limited has taken its registration from RJSC as a private limited Company under the provisions of Companies Act, 1994, however, ABCD Ltd. did not bother to take any trademark registration but has grown its business very fast creating a considerable brand value.
Upon observing the quick business success of ABCD Ltd. their opponent started a business with the business name called “ABCD traders” upon taking a trade license from the City Corporation which is a sole proprietorship/partnership business and they subsequently also obtained trademark registration from the DPDT.
In such scenario, definitely ABCD Ltd. will lose their business opportunities/reputation and for any dispute ABCD traders will get protection for their trademark registration although their intention of operating business with an identical name was malafide.
What currently we have in our mind is only to blame ABCD Ltd. who is solely responsible for bearing such business loss/losing brand name due to the fact that they did not take trademark registration for their protection but does the RJSC or DPDT may/should have an alternative role to play to protect the interest of ABCD Ltd. to some extent without just blaming them? Obviously, it is always a sound decision to take trademark registration but we should also give some protection to those like ABCD Ltd. who for whatsoever reason could not take trademark registration beforehand.
In the above scenario, what if DPDT could have identified that there is already a registered company in Bangladesh with RJSC with the same name and accordingly could have reject the trademark application of ABCD traders? Vice versa, if they share database then RJSC could also reject giving any name clearance to a company/firm for the same/similar name that has already been taken and registered under trademark by some other proprietor/traders.
Yes, to make this action practicable, the two separate ministries under whom RJSC and DPDT are operating needs to be agreed to share their database commonly. In order to minimise sufferings of business concern, and to reduce disputes the ministries should immediately reach to a consensus with that effect but for some unknown reason despite having continuous meetings in this behalf the said two ministries are not coming together for the greater interest of general people! Likewise, gradually the other local authorities like City Corporation may also share the same database to avoid giving trade license to a name which has already taken trademark registration or registered with RJSC and also Bangladesh Standards & Testing Institution (BSTI) upon accessing the common database can cheque the availability of the label name for the applied brand before issuing CM license and label printing permission for the name/logo. I believe this is the high time to consider such development amongst the Government institutions which is feasible specially in Bangladesh when the Government of Bangladesh is rapidly digitalizing all services to ease sufferings of mass people.
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