PRE-EMPTION UNDER THE STATE ACQUISITION AND TENANCY ACT, 1950 & THE NON-AGRICULTURAL TENANCY ACT,1949

Introduction:

In case of transfer of land, pre-emption simply means right to purchase first. In other words, the act of buying a plot of land before of ahead of others.

Section 96 of The State Acquisition and Tenancy Act, 1950 and section 24 of The Non-Agricultural Tenancy Act, 1949 have described the provisions for pre-emption. Section 96 of The State Acquisition and Tenancy Act, 1950 was substituted by section 2 of The State Acquisition and Tenancy (Amendment) Act, 2006. However, provisions of pre-emption under section 96 of The State Acquisition and Tenancy Act, 1950 and section 24 of The Non-Agricultural Tenancy Act, 1949 shall not take away the right of pre-emption conferred on any person by the Mohammadan Law as per section 96(17) of The State Acquisition and Tenancy Act, 1950 and section 24(10) of The Non-Agricultural Tenancy Act,1949.

A clear conception of the terms “holding” and “co-sharer” is necessary for a better understanding of pre-emption. As per section 2(13) of The State Acquisition and Tenancy Act, “holding” means a parcel or parcels of land or an undivided share thereof and forming the subject of a separate tenancy. Assume “X” dies leaving three sons A,B,C and a land of same holding consisting of 6 plots. Each son will get his part as per the law of inheritance. Now three sons have sold a plot to some “D”. Now ABCD are co-sharer of the land of the same holding. While ABC have became co-sharer by inheritance, D has became co-sharer by purchasing. However, if ABC and D performs mutation in their names of the respective plots, it will be no longer land of the same holding.

When pre-emption is applicable:

As per section 96(1) of The State Acquisition and Tenancy Act, 1950 : If a portion or share of a holding of a raiyat is sold to a person who is not a co-sharer tenant in the holding. As per section 24(1) of The Non-Agricultural Tenancy Act, 1949: If a portion or share of the non-agricultural land held by a non-agricultural tenant is transferred.

Who can apply:

As per section 96(1) of The State Acquisition and Tenancy Act, 1950 : one or more co-sharer tenants of the holding : a co-sharer tenant in the holding by inheritance; and a person to whom sale of the holding or the portion or share thereof. As per section 24(1) of The Non-Agricultural Tenancy Act, 1949: one or more co-sharer tenants of such land. They may apply to the Court for the said portion or share to be sold to himself or themselves.

Amendment made: Earlier as per section 96(1) of the State Acquisition and Tenancy Act, the tenant or tenants holding lands contiguous to the land transferred have the competency to apply for pre-emption. However, after the amendment of 2006, contiguous land holders have no such power.

Time limit for application:

As per section 96(1) of The State Acquisition and Tenancy Act, 1950 : within two months of the service of the notice given under section 89, or, if no notice has been served under section 89, within two months of the date of the knowledge of the sale. Earlier, the time limit was four months. After 2006 amendment, it is now two months. As per section 24(1) of The Non-Agricultural Tenancy Act, 1949: within four months of the service of notice issued under section 23 and, in case no notice had been issued or served, then within four months from the date of knowledge of such transfer.

Deposits Needed:

The applicant will have to deposit the following amounts to the Court at the time of application:

Earlier provisions of section 96 of the SAT Act:

- the amount of consideration/value of the transferred land mentioned in section 89 or in the deed of transfer.
- compensation at the rate of ten per centum of the said value.

New provisions of section 96 of the SAT Act:

- the amount of consideration/value of the transferred land mentioned in section 89 or in the deed of transfer.
- compensation at the rate of twenty-five centum of the said value.
- Eight per centum simple annual interest upon the value of the transferred land (for the period of executing transfer deed to filing pre-emption case).

Provisions under section 24 of the NAT Act:

- the amount of consideration/value of the transferred land mentioned in section 23.
- compensation at the rate of five per centum of the said value.

Further Deposits May Be Needed:

After serving notices to the parties to the suit, taking hearing, holding enquiry and fixing by the Court, the applicants shall have to make further deposits for follows if necessary:

Provisions under section 89 of the SAT Act (earlier and new provisions are same):

A further sum, if necessary, to cover consideration money actually paid, other sums paid by the purchaser for rent, expenses incurred in annulling encumbrances or making any improvement of the land.

Provisions under section 24 of the NAT Act:

Such amount as the purchaser spent for rent, incurred in annulling encumbrances, in erecting any building or structure or making other improvement together with six and quarter per centum annual interest.

Passing of Order:

The Court shall determine who are entitled and pass order for pre-emption on following conditions:

Section 96 of SAT ACT (Earlier):

- if orders are passed in favour of more than one applicant, the Court shall apportion the land as it deems equitable.
- Purchaser be paid out of the deposit the amount of consideration money, ten per centum of such amount as compensation, amount spent for rent, incurred in annulling encumbrances or making other improvement.

Section 96 of SAT ACT (New):

- if orders are passed in favour of more than one applicant, the Court shall apportion the land as it deems equitable.
- Purchaser be paid out of the deposit.


Section 24 of NAT ACT :

- if orders are passed in favour of more than one applicant, the Court shall apportion the land as it deems equitable.
- Purchaser be paid out of the deposit.

Where Pre-emption is not applicable:

As per section 24(11) of The Non-Agricultural Tenancy Act, 1949: Nothing in this section shall apply to- (a) a transfer to a co-sharer in the tenancy whose existing interest has accrued otherwise than by purchase, or (b) a transfer by exchange, or partition, or (c) a transfer by bequest or gift (including heba but excluding heba-bil-ewaz for any pecuniary consideration) in favour of the husband or wife of the testator or the donor or of any relation by consanguinity within three degrees of the testator or donor, or (d) a wakf in accordance with the provisions of the Muhammadan Law, or (e) a debottor or any other dedication for religious or charitable purposes without any reservation of pecuniary benefit for any individual.

Case Laws:

(1) Section 24 of Non-Agricultural Tenancy Act and section 96 of State Acquisition and Tenancy Act is applicable for pre-emption of land falling within the municipal area. (Md. Abdur Rouf and others Vs. Ahmuda Khatun and others 1 BLD (AD) 269).
(2) Pre-emption may be allowed only in the case of transfer of the land to a co-sharer tenant. (S.M.Basiruddin Vs. Zahurul Islam Chowdhury (1983) 35 DLR (AD) 230).


Statutory Provisions:


Pre-emption Under The State Acquisition and Tenancy Act, 1950:

96. (1) If a portion or share of a holding of a raiyat is sold to a person who is not a co-sharer tenant in the holding, one or more co-sharer tenants of the holding may, within two months of the service of the notice given under section 89, or, if no notice has been served under section 89, within two months of the date of the knowledge of the sale, apply to the Court for the said portion or share to be sold to himself or themselves: Provided that no application under this section shall lie unless the applicant is-(a) a co-sharer tenant in the holding by inheritance; and (b) a person to whom sale of the holding or the portion or share thereof, as the case may be, can be made under section 90: Provided further that no application under this section shall lie after expiry of three years from the date of registration of the sale deed.

(2) In an application under sub-section (1), all other co-sharer tenants by inheritance of the holding and the purchaser shall be made parties.

(3) An application under sub-section (1) shall be dismissed unless the applicant or applicants, at the time of making it, deposit in the Court-

(a) the amount of the consideration money of the sold holding or portion or share of the holding as stated in the notice under section 89 or in the deed of sale, as the case may be;
(b) compensation at the rate of twenty five per centum of the amount referred to in clause (a); and

(c) an amount calculated at the rate of eight per centum simple annual interest upon the amount referred to in clause (a) for the period from the date of the execution of the deed of sale to the date of filing of the application for preemption.

(4) On receipt of such application accompanied by such deposits, the Court shall give notice to the purchaser and to the other persons made parties thereto under sub-section (2) to appear within such period as it may fix and shall require the purchaser to state what other sums he has paid in respect of rent since the date of sale and what expenses he has incurred in annulling encumbrances on, or for making any improvement in respect of the holding, portion or share sold.

(5) The Court shall, after giving all the parties an opportunity of being heard after holding an enquiry as to rent paid and the expenses incurred by the purchaser as referred to in sub-section (4), direct the applicant or applicants to deposit a further sum, if necessary, within such period as the Court thinks reasonable.

(6) When an application has been made under sub-section (1), any of the remaining co-sharer tenants may, within the period referred to in sub-section (1) or within two months of the date of the service of the notice of the application under sub-section (4), whichever be earlier, apply to join in the said application; any co-sharer tenant who has not applied either under sub-section (1) or under this sub-section, shall not have any further right to purchase under this section.

(7) On the expiry of the period within which an application may be made under sub-section (6), the Court shall determine, in accordance with the provisions of this section, which of the applications filed under sub-section (6) shall be allowed.

(8) If the Court finds that an order allowing the applications made under sub-section (7) is to be made in favour of more than one applicant, the Court shall determine the amount to be paid by each of such applicants and, after apportioning the amount, shall order the applicant or applicants who have joined in the original application under sub-section (6) to deposit in the Court the amounts payable by him or them within such period as it thinks reasonable; and if the deposit is not made by any such applicant within such period, his application shall be dismissed. (9) On the expiry of the period within which a deposit, if any, is to be made under sub-section (8), the Court shall pass orders-

(a) allowing the application or applications made by the applicant or applicants who are entitled to purchase under, and have complied with the provisions of, this section; (b) apportioning the holding or the portion or share of the holding among them in such manner as it deems equitable when such orders are passed in favour of more than one applicant under sub-section (8);

(c) refunding money to any one if entitled to such refund of any money from the amount deposited by the applicant or applicants under sub-sections (3) and (5);

(d) directing that the purchaser be paid out of the deposits made under sub-sections (3) and (5); (e) directing the purchaser to execute and register deed or deeds of sale within sixty days in favour of the person or persons whose application or applications have been allowed; and no tax, duty or fee shall be payable for such registration.

(10) If the purchaser fails to execute and register deed or deeds of sale in pursuance of the directions under clause (e) of sub-section (9), within sixty days in favour of the person or persons whose application or applications have been allowed, the court shall execute and present deed or deeds of sale for registration within sixty days thereafter in favour of such person or persons whose application or applications have been allowed.

(11) From the date of the registration of sale deed or deeds under clause (e) of sub-section (9) or under sub-section (10), the right, title and interest in the holding or portion or share thereof accruing to the purchaser from the sale shall, subject to any orders passed under sub-section (9), be deemed to have vested, free from all encumbrances which have been created after the date of sale, in the co-sharer tenant or tenants whose application or applications to purchase have been allowed under sub-section (9).

(12) The Court on further application of such applicant or applicants may place him or them, as the case may be, in possession of the property vested in him or them.

(13) No apportionment ordered under clause (b) of sub-section (9) shall operate as division of the holding.

(14) An application under this section shall be made to the Court which would have jurisdiction to entertain a suit for the possession of the land in connection with which the application is brought. (15) An Appeal shall lie to the ordinary Civil Appellate Court from any order of the Court under this section.

(16) Nothing in this section shall be deemed to apply to homestead land.

(17) Nothing in this section shall take away the right of pre-emption conferred on any person by the Mohammadan Law.

(18) Nothing in this section shall apply to any transfer of any portion or share of a holding of a raiyat or any application under section 96 of this Act, made prior to coming into force of the State Acquisition and Tenancy (Amendment) Act, 2006.]


Pre-emption under The Non-Agricultural Tenancy Act, 1949:

24. (1) If a portion or share of the non-agricultural land held by a non-agricultural tenant is transferred, one or more co-sharer tenants of such land may, within four months of the service of notice issued under section 23 and, in case no notice had been issued or served, then within four months from the date of knowledge of such transfer, apply to the court for such portion or share to be transferred to himself or to themselves, as the case may be.(2) The application under sub-section (1) shall be dismissed unless the applicant at the time of making it deposits in Court the amount of the consideration money or the value of the portion or share of the property transferred as stated in the notice served on the applicant under section 23 together with compensation at the rate of five per centum of such amount.(3) If such deposit is made, the Court shall give notice to the transferee to appear within such period as it may fix and to state what other sums he has paid in respect of rent for the period after the date of transfer or in annulling encumbrances on the property and also what other amounts, if any, have been spent by him, between the date of the transfer and the date of service of the notice of the application, in erecting any building or structure or in making any other improvement in the portion or share of the property transferred. The Court shall then direct the applicant, including any person whose application under sub-section (4) is granted, to deposit within such period as the Court thinks reasonable such amount as the transferee has paid or spent on these accounts together with interest at the rate of six and a quarter per centum per annum with effect from the date on which the transferee made such payments or spent such amounts:

Provided that if the correctness of any amount claimed to have been paid or spent by the transferee on any such account is disputed by any applicant the Court shall enquire into such dispute and, after giving the transferee an opportunity of being heard, determine the amount actually paid or spent by the transferee on any such account and shall then direct the applicant to deposit the amount so determined with interest at the rate of six and quarter per centum per annum as aforesaid within such period as the Court thinks reasonable.(4) (a) When an application has been made by one or more co-sharer tenants under sub-section (1) any of the remaining co-sharer tenants including the transferee, if one of them, may within the period of four months referred to in the said sub-section or within one month of the service of notice of the application, whichever is later, apply to join in the said application, and any co-sharer tenant who has not applied under sub-section (1) or has not applied to join under this sub-section, shall not have any further right to purchase under this section.(b) Such application to join as a co-applicant shall be dismissed unless within such period as the Court may fix, the applicant deposits in Court for payment to the applicant under sub-section (1), such sum, as the Court shall determine as the share to be paid by him for the purposes of sub-section (2).

(c) If such deposit is made, the Court shall grant the application to join and thereafter such applicant shall be deemed to be an applicant under sub-section (1).

(5) If the deposits required under sub-section (2) or clause (b) of sub-section (4), as the case may be, and under sub-section (3) are made, the Court shall make an order allowing the application and directing that the deposits made under sub-sections (2) and (3) shall be paid to the transferee or to such persons as the Court thinks fit.

(6) Notwithstanding anything contained in any other law for the time being in force the Court shall, if the applicant under sub-section (1) or any person whose application under sub-section (4) is granted disputes the correctness of the amount of the consideration money as stated in the notice issued under section 23, inquire into such dispute before making an order under sub-section (5) and after giving the transferee an opportunity of being heard determine for the purposes of this section the amount of the consideration money which the transferee has actually paid for the transfer of the portion or share of the property and the amount so determined shall be deemed to be the consideration money referred to in sub-section (2) and where the amount of the consideration money has been so determined the deposit made under that sub-section shall for the purposes of sub-section (5) be the amount so determined together with the compensation at the rate of five per centum of such amount.(7) In making an order under sub-section (5) in favour of more than one co-sharer tenant, the Court may apportion the property comprised in the portion or share transferred among the applicants in such manner as it deems equitable after taking existing possession into consideration; the Court shall so apportion the said property or portion thereof on the request of any applicant and, in this case, may require the applicant who makes such request to deposit, within such period as the Court may fix, such further sums as the Court considers necessary for equitable distribution among the remaining applicants:

Provided that no apportionment order under this sub-section shall operate as a division of the tenancy.

(8) From the date of making of the order under sub-section (5)-

(i) the right, title and interest in the share or portion of the non-agricultural land accruing to the transferee from the transfer shall, subject to any order passed under sub-section (7), vest free from all encumbrances, which have been created after the date of transfer, in the co-sharer tenant whose application to purchase has been allowed under sub-section (5),

(ii) the liability of the transferee for the rent due from him on account of the transfer shall cease, and

(iii) the Court, on further application of such applicant, may place him in possession of the property vested in him.

(9) An appeal from any order of a Court under this section shall lie to the Civil Appellate Court having jurisdiction to entertain such appeals.

(10) Nothing in this section shall take away the right of pre-emption conferred on any person by Muhammadan Law.

(11) Nothing in this section shall apply to-

(a) a transfer to a co-sharer in the tenancy whose existing interest has accrued otherwise than by purchase, or

(b) a transfer by exchange, or partition, or

(c) a transfer by bequest or gift (including heba but excluding heba-bil-ewaz for any pecuniary consideration) in favour of the husband or wife of the testator or the donor or of any relation by consanguinity within three degrees of the testator or donor, or

(d) a wakf in accordance with the provisions of the Muhammadan Law, or

(e) a debottor or any other dedication for religious or charitable purposes without any reservation of pecuniary benefit for any individual.

Explanation.- A relation by consanguinity shall for the purposes of this sub-section, include a son adopted under the Hindu Law.

Trademark Law of Bangladesh

What is Trademark

A trademark is a visual symbol in the form of a word, a device or a label applied to articles of commerce with a view to indicate to the purchasing public that they are the goods manufactured or otherwise dealt in by a particular person as distinguished from similar goods manufactured or dealt in by other persons.

The Trademark Act, 2009 regulates trademarks in Bangladesh. As per section 2(23) of the Act, “mark” includes a device, brand, heading, label, ticket, name, signature, word, letter, or numeral or any combination thereof. Section 2(8) of the Act defined trademark as-
(a) any registered trademark or any mark which is used in relation to any goods for the purpose of indicating rights of the user/proprietor of the mark on that goods in the course of trade.
(b) any mark which is used in relation to any service for the purpose of indicating rights of the user/proprietor of the mark on that service in the course of trade.

Functions of a trademark

Under modern business conditions a trademark performs four functions-

(a) it identifies the product and its origin; that is, it represents the manufacturing company. For example, Radhuni of Square.
(b) it guarantees its unchanged quality.
(c) it advertises the product.
(d) it creates an image for the product.

Which marks are registrable

1. It must be distinctive. (Section # 6)

Distinctiveness is one of the prime criteria for the registration of a trademark. How distinctiveness can be determined:
(a) common sense.
(b) discretionary reaction.

Section 6 of the Act imposes some preconditions for registration. Section 6 mentions a trademark shall not be registered unless it contains or consists of at least one of the following particulars, namely-

(a) the name of a company, individual or firm represented in special or particular manner.
(b) the signature of the applicant for registration or some predecessor in his business.
(c) one or more invented words.
(d) one or more words having no direct reference to the character or quality of goods and not being according to its ordinary signification, a geographical name or surname or the name of the sect, caste or tribe in Bangladesh.
(e) any other distinctive mark.


2. Deceptive similarities are not acceptable. (section # 10)

As per section 2(20) of the Act, “deceptively similar mark” means any mark which is likely to deceive or cause confusion and which is similar to any mark, registered under the Act.


Section 10 of the Trademark Act, 2009 imposes prohibitions on registering trademarks with similarity or deceptive similarity, which are as follows:

Section 10(1): a trademark shall not be registered if it is identical with or deceptively similar to an earlier trademark and goods and services covered by the trademark, registered in the name of another owner.

Section 10(2): joint/concurrent uses of a trademark can be approved by the Registrar under suitable terms and conditions for any honest purposes or reasonable causes.

Section 10(4): trademark of any goods or service shall not be registered if it is formed by translation of any identical mark or trade description of other business firm which is well-known in the country.

Section 10 (5): in case of similarity to any well-known trademark, trademark of that goods or service shall not be registered, if –

(a) it may create wrong conception that said goods or service has relation with the registered owner.
(b) said uses may cause violation of rights or ruin interest of the registered owner.

Section 10 (7): prohibitions under the provisions of deceptive similarity shall not make any obstacle to register a trademark if there is consent of the owner of the earlier registered trademark.

Deceptive similarity includes not only confusion but also deception. Factors to be taken into consideration in determining deceptive similarities:

(a) the nature of the marks;
(b) the degree of resemblance;
(c) the nature of the goods or services;
(d) the class of the consumers (their level of education and intelligence);
(e) any other surrounding circumstances.

3. Characteristics of good trademarks:

(a) it must be easy to pronounce and remember, if the mark is a word;
(b) it must be easy to spell correctly and write legibly;
(c) it should not be descriptive but may be suggestive of the quality of the goods;
(d) it should be short;
(e) it should appeal to the eye as well as to the ear;
(f) it should satisfy the requirements of registration;
(g) it should not belong to the class of marks prohibited for registration.

Which marks are not registrable

Section. 8 : Some restrictions on registration:

As per section 8 of the Trademarks Act, 2009, no trademark nor part of a trademark shall be registered if –

(a) it comprises or contains scandalous obscene matter;
(b) be contrary to any existing law;
(c) it is of such nature as to deceive the public or to cause confusion;
(d) be likely to hurt the religious susceptibilities of any class of the citizens of Bangladesh;
(e) it uses name, first letter of a name, hallmark, monogram, map, flag, symbol, sign, of a country or international organization or any organization formed through international treaty or convention without approval of the competent authority or person; or it contains identical, partially identical or part of it.
(f) is not fit for obtaining the protection of Court for any other reasons;
(g) any application is made for ill-motives or by adopting unfair means.

Registration Procedure

Who can apply and how

Section 15(1): if the proprietor of a trademark used or proposed to be used desires to register it shall apply in the prescribed manner to the Registrar. As per section 15(2) separate applications must be made for each class of goods or services.

Where to apply

Section 15(3): in case of single applicant, application shall be filed in the office of the Trademarks Registry within whose territorial limits the head office of business of the applicant is situated. In case of joint applicants, application shall be filed in the office of Trademark registry under whose territorial limits the head office of business of the applicant whose name is first mentioned in the application is situated. As per section 15(4) of the Act, if the applicant does not carry on business in Bangladesh, application is to be submitted in the office of the Trademarks Registry where the correspondence office of the applicant is situated.

What to be done by the Registrar upon receiving an application

Section 15(5): upon receiving an application, the Registrar may –

(a) accept the application absolutely;
(b) refuse the application by writing reasonable causes;
(c) accept subject to such amendments, modifications, conditions or limitations as he thinks fit.
Section 16 provides further that after acceptance of an application, if the Registrar is satisfied that the application has been accepted in error, or it should not be registered, or should be registered upon imposing additional conditions or limitations, the Registrar may reject the application after giving the applicant opportunity of being heard.

Advertisement of acceptance

Section 17(1): after accepting an application for registration, whether absolutely or conditionally, the Registrar shall circulate advertisement in the prescribed manner by mentioning of its’ conditions or limitations.

Opposition to registration

Notice of opposition: as per section 18(1), notice of opposition to a registration by any person may be submitted to the registrar in the prescribed manner and by paying prescribed fee within two months from the date of advertisement of an application for registration.

Serving copy to the applicant: as per section 18(2) the Registrar shall serve a copy of the notice on the applicant within one month from the receipt of the notice.

Counter-statement by the applicant: as per section 18(2), the applicant shall send a counter-statement to the Registrar within two months of receiving such notice mentioning basis of his application; otherwise his application shall be considered abandoned.

Serving copy of counter-statement to the opponent: as per section 18(3), if the applicant sends counter-statement, the Registrar shall serve a copy thereof on the opponent within one month of receiving such statement.

Settlement of opposition: as per section 18(4), the applicant and the opponent shall submit their evidence to the Registrar, and both of them will be given the opportunity of being heard by the Registrar. As per section 18(5), after hearing the parties and considering the evidence, the Registrar shall decide whether and subject to what conditions the registration is to be permitted. All proceedings regarding opposition of registration must be completed within 120 days of serving notice by the opponent as section 18(8).

Registration:

As per section 20 of the Act, the Registrar shall register an applied trademark giving effectiveness from the date of application on the following situations:

(a) an application for registration of a trademark has been accepted;
(b) the application has not been opposed and the time for notice of opposition has expired;
(c) the application has been opposed, and the related decisions has been taken in favour of the applicant.
As per section 20(2), on registration of a trademark, the Registrar shall issue to the applicant a certificate in the prescribed form, sealed with the seal of the Trademarks Registry.

Duration, renewal and restoration of registration:

As per section 22(1), duration/tenure of the registration of a trademark shall be for a period of seven years, but may be renewed. As per section 22(2), upon application made by the proprietor in the prescribed manner and subject to payment of prescribed fee, the Registrar shall renew the registration of a trademark for a period of ten years from the date of expiration of the original or renewed registration.
Unless renewed, the trademark will be public property.

Infringement of Trademark

Infringement of trademark means using a registered trademark without the consent of its registered proprietor. Section 26(1) of the Act, defines infringement as “ if a person, not being registered proprietor or user, uses any distinctive or deceptively similar trademark in relation to goods or service in his own trade, it will be considered that he has infringed a registered trademark.

Which categories of trademark will be treated as infringement:

As per section 26(2), using such trademarks that falls under the following categories will be treated as infringement:

(a) marks identical and goods or service similar;
(b) marks similar and goods or service identical;
(c) marks identical and goods or service identical;

Using following marks will also be considered as infringement as per section 26(3):

(a) marks identical or similar and goods or service not similar. For example, an application to register “Gluvita” as a trademark for biscuit was refused, because similar trademark “Glucovita” is being used for glucose powder by another registered use.
(b) using a mark without due causes takes unfair advantage of or is detrimental to the distinctive character or repute of a well-reputed registered trademark in Bangladesh.

Meaning of using a registered trademark by infringement:

As per section 26(4), for the purpose of section 26, “uses of registered trademark” means-

(a) affixes it to goods or to the packaging thereof;
(b) exposes any goods, supplies goods to the market for sale using the mark, supplies service or offers to supply service under the mark or stocks them;
(c) imports or exports goods with the mark;
(d) uses any mark on business papers or in advertising.

Infringement of trademark by advertising:

Infringement of a trademark by advertisement will mean such advertisement, which –

(a) takes unfair advantage and is contrary to honest practices in industrial or commercial matters, or
(b) is detrimental to its’ distinctive character, or
(c) is against the reputation of the trademark.

Defenses of the defendant

In a case of infringement of a trademark, the defendant may plead one or more of the following defenses as may be applicable to his case:

(a) the plaintiff has no title to the suit;
(b) registration of the mark is not valid and is liable to be expunged;
(c) the use of the mark complained of is not an infringement of the registered trademark;
(d) the defendant’s use is prior to the registration and use of the plaintiff.
(e) the defendant has a right to use by virtue of honest concurrent use;
(f) the plaintiff’s trade is fraudulent, or his trademark is deceptive.

As per section 26(8), if the defendant in a case of infringement of a trademark can satisfy the Court of the followings:

(a) the use complained is not likely to deceive or cause confusion to the people;
(b) it does not indicate a business relationship between the proprietor/user of a registered trademark and any goods or service under such mark complained of;
In such case, the Court will not impose any sanction or grant any other relief in favour of the plaintiff.

Anti-Money Laundering Law of Bangladesh

Anti-Money Laundering Legislation in Bangladesh

First anti-money laundering legislation of the country is Money Laundering Prevention Act, 2002, which was effective from 7th April,2002 to 14th April,2008. It was replaced by the Money Laundering Prevention Ordinance on 15th April,2008; subsequently, the ordinance was passed by the national parliament and Money Laundering Prevention Act,2009 was enacted giving effectiveness from 15th April, 2009 (Gazette Notification:24th Feb,2009).

What is Money Laundering: Classic View

The process by which one conceals the existence, illegal source or illegal application of income, and then disguises that income to make it appear legitimate. That is, the money-launderer is converting his dirty money to clean money.

Reverse Money Laundering

The act of transferring/placing legitimate money and assets into an underground criminal network to support criminal activity. That is, one who is investing his clean money to dirty activities, he is laundering money.

Motivations for Laundering Money

There are numerous motivations for laundering money. Some notables are:

(a) Avoid revealing involvement in the underlying crime;
(b) Hide it so that the Government can’t take it away;
(c) Criminal needs it for future illegal activity;
(d) Be able to spend it!

Kinds of Criminals Launder money

Situations depend on country to country. In Bangladesh, mainly the following categories of persons are associated with money laundering –

(a) Public officials who receive bribes;
(b) Businessmen to finance smuggling, under-invoicing, over-invoicing;
(c) Human traffickers;
(d) Migrants to transfer assets;
(e) Drug dealers and terrorist financers.

Definition of Money Laundering as per section 2(L) of Money Laundering Prevention Act, 2002

In the earlier Act on anti-money laundering, two categories of activities were defined as money laundering, namely:

(a) Earned or acquired assets directly or indirectly through illegal means.
(b) Transfer, conversion, concealment of whereabouts of earned/acquired assets, which was earned directly or indirectly through illegal means, or assisting such activities.

Definition of Money Laundering as per section 2(k) of Money Laundering Prevention Act,2009

Four categories of activities have been defined as money laundering in the present Act, namely:

(a) Transfer, conversion, remitting abroad or bring from abroad to Bangladesh the proceeds or properties acquired through commission of a predicate offence, for the purpose of concealing or disguising the illicit origin of the money or property;
(b) Illegal remitting abroad of money or properties acquired/earned through legal or illegal means.
(c) To conduct, or attempt to conduct a financial transaction with an intent to avoid reporting requirements.
(d) To do or attempt to do such activities so that the illegitimate source of the fund or property can be concealed or disguised or knowingly assist to perform or conspire to perform such activities.

In brief, four categories of activities that are defined as money laundering in the new Act are:

(a) Transfer, conversion, remitting to and from Bangladesh involving proceeds of a predicate offence.
(b) Illegal remitting abroad of legally/illegally earned money/property.
(c) Transaction to avoid reporting requirements.
(d) To assist such activities.

List of Predicate Offences as per section 2(q)

Corruption and bribery;
Counterfeiting currency;
Counterfeiting documents;
Extortion;
Fraud;
Forgery;
Business of illegal arms;
Illicit dealings of narcotics, drugs and psychotropic substances;
Illicit dealings of stolen and other goods;
Kidnapping, illegal detention, hostage-taking;
Murder, grievous bodily injury;
Woman and child trafficking;
Smuggling and cross-border transfer of local and foreign currency;
Robbery or theft;
Trafficking human and illegal immigration;
Dowry;
Any other offence declared by Bangladesh Bank.

Reporting Agency as per section 2(L)

As we have seen that transaction to avoid reporting requirements has been defined as money laundering. Let us now see who are to reports, that is, which are reporting agencies:

(a) Bank/Financial Institutions;
(b) Insurance Companies;
(c) Money changers;
(d) Companies remitting money;
(e) Any such organization declared by Bangladesh Bank.

Responsibilities of Reporting Agency

Let us now see what are to be reported by the reporting agency:

(a) Keeping full information of its’ clients (KYC);
(b) Inform Bangladesh Bank proactively and immediately on suspicious transactions likely to be related to money laundering.

Suspicious Transaction as per section 2

Reporting agencies are to report suspicious transaction. Section 2 defines suspicious transaction as:

(a) Transaction that substantially deviates from usual transaction;
(b) Reasonable cause to believe that the transaction is related to any proceeds of crime.

Investigation and Trial under Money Laundering Prevention Act, 2002

As per section 5 of the Money Laundering Prevention Act, 2002, investigation was to be done by the Bangladesh Bank or any person authorized by Bangladesh Bank. And as per section 6 of the Money Laundering Prevention Act, 2002, all Session Judges were empowered for trial of money laundering cases.

Investigation and Trial under Money Laundering Prevention Act, 2009

Followings are the notable features of investigation and trial process under the Money Laundering Prevention Act, 2009:

(a) As per section 11, offences under the Act shall be cognizable, non-compoundable, non-bailable.
(b) Any individual may provide information to file First Information Report about the commission of a money laundering occurrence to the police station as per section 154 of CrPC.
(c) Offences under the Act considered as scheduled offences of the Anti-Corruption Commission Act, 2004; therefore, such offences can be investigated only by ACC (Section 9(1).
(d) To be tried by the Special Judge (Section 10).

Bank Account Freeze by Bangladesh Bank

Bangladesh Bank can issue order to any Bank/Financial Institutions to freeze an account for 30 days (can be extended further 30 days) where there are grounds to suspect that the transaction involves proceeds of crime (Section 23©). Special Judge can order continuation of such freezing (Section 10).

Freezing and Attachment of Property (Section 10)

Upon application of the investigating organization, the Court may give order of attachment of property, wherever situated, within or outside Bangladesh. Mutual Legal Assistance Request (MLAR) through the Attorney General Office is needed if the property is in outside of Bangladesh.

Punishment as per section 4(2)

Punishment for money laundering offences is imprisonment for a term not less than six months and not exceeding seven years. In addition, property involved with the offence shall be forfeited in favor of the state.

Enforcing Organizations

Bangladesh Bank: Keeping database and analyze facts provided by the reporting organizations. Giving direction to the reporting organization and monitoring their activities. Usually these are done by the Money Laundering Prevention Unit of Bangladesh Bank.

Financial Intelligence Unit (FIU) of BB: Exchanging information about suspicious transaction with FIU of other countries on the basis of signed contract.

Ministry of Home Affairs and Attorney-General Office: Central authority for MLAR.

Anti-Corruption Commission: Investigating Organization.

Burden of Proof/Evidence

There is no such provision in the Money Laundering Prevention Act that burden of proof lies with the accused. Collecting evidence of corroborative elements with predicate offences is important to prosecute. However, as per section 7 of the Criminal Law Amendment Act, 1958, when any person is charged of possessing pecuniary resources or property which is disproportionate to his known sources of income, for which he cannot satisfactorily account, it may be taken as a relevant fact in deciding whether he is guilty of the particular offence with which he is charged.

Bulk Cash Smuggling

Bulk cash smuggling cases are being prosecuted under section 16 of The Customs Act, 1969 and section 8(1) and 8(2) of The Foreign Exchange Regulation Act,1947