Consensus (Ijma)

Ijma has been defined as “the unanimous agreement of the mujtahidun [Islamic scholars] of the Muslim community of any period following the demise of the Prophet Mohammad on any matter”. Ijma has two meanings: the first is “to determine and to agree upon something.” The second meaning is “unanimous agreement on something. Ijma is applicable to all judicial, intellectual, agriculture, commercial, political and administrative issues.⁶⁸ Ijma can be traced back to the Quran and Sunnah. In the Ijma, qualified Islamic scholars are allowed to articulate rules for regulating the daily affairs for which the Quran and Sunnah provide no solution.⁶⁹

1.3.2.2. Analogy (Qiyas)

Linguistically speaking, Qiyas means “measuring or ascertaining the length, weight or quality of something”. It also means “comparison, with a view to suggesting equality or similarity between two things”.⁷⁰ The authority and power of Qiyas is traced back to the Quran and Sunnah sources. The rationale behind accepting a Qiyas is to find a solution for an issue. When a judge is faced with a situation that has not been defined or resolved by the Quran, Sunnah and Ijma – for example the protection of intellectual property rights – analogy or reason is used to resolve the case. In Qiyas, the

67- Heba A. Raslan, Shari’a and the Protection of Intellectual Property, p. 506.

68 - Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, p. 230.

69 - There are three main stipulations for Ijma: 1- the Islamic scholars or Mujtahidun who participate in Ijma must be qualified. 2-“The constituents of Ijma are clear of pernicious innovation and heresy”. 3-“The constituents of Ijma are qualified to carry out ijtehad when the issue requires specialized knowledge in particular areas of Shari’ah”. For more information see: Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, p. 234.

70 - Hashim Kamali, Principles of Islamic Jurisprudence, p. 264.

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current and existing rules will be applied to a new situation or case, provided that the new situation is similar to a previous situation.⁷¹

1.3.2.3 . Public interest (Masalaha Mursalah)

Masalaha literally means “benefit” or “interest”. It relates to unlimited public interest and secures an interest or prevents harm to the public. The main objective of Islamic legislation is “to secure the welfare of the people by promoting their benefit or by protecting them against harm”.⁷² The rationale for Masalaha is that, when there is a new case or situation that has not previously been addressed in the mentioned sources, such as Quran, Sunnah, Ijma and Qiyas, it is permitted to refer to Masalaha, or public interest, as a “supplementary source of rules in Sharia” to define and settle the issue.

According to Islamic scholars, there are five basic purposes of Islamic law or Sharia, which are:

“safeguarding and promoting the individual’s faith, life, intellect, posterity and wealth”. Therefore, when a question relates to one of these issues and there is no clear and decisive provision to define them in such circumstances, these purposes need to be articulated based on the public interest, unless there is an existing rule.⁷³

1.3.2.4. Customs (Urf)

Islamic law recognizes custom, or Urf, as a source of law. Urf refers to “recurring practices that are acceptable to people of sound nature”. Therefore, a custom must be “sound and reasonable” in order to be valid. An Urf shall be valid and authoritative when it is not in opposition to the basic principles of Sharia.⁷⁴ A description of Urf as a source of the legal system of Afghanistan was provided in the previous section.

It should be noted that all secondary articulated sources must be in conformity with the Quran and Sunnah values.⁷⁵ The purpose of this part of the thesis is not to explain all of the sources of Islamic law in great detail. Rather, the aim is to examine current and applicable rules within sources of Islamic law with a particular view to finding such that pertain to the legal protection of intellectual property rights.

It should be noted that Islamic law has yet to directly address the legal protection of intellectual property rights in its jurisprudence. Like with other issues, such as criminal, commercial and

71 - Heba A. Raslan, Shari’a and the Protection of Intellectual Property, p. 509

72 - Hashim Kamali, Principles of Islamic Jurisprudence, p. 351-2.

73- Heba A. Raslan, Shari’a and the Protection of Intellectual Property, p. 511.

74- Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, p. 369-70.

75 -Heba A. Raslan, Shari’a and the Protection of Intellectual Property, p. 509.

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administrative law, regulating intellectual property rights is the responsibility of the government. This governmental authority is bestowed by the secondary sources of Islamic law.⁷⁶

However, concerning the legal protection of intellectual property rights, Islamic scholars are divided into those who oppose such protection and those who are in favour of it. The former hold the perception that, in the Sharia, ownership of property is limited to “tangible objects not […] intangible”

objects. They also claim that there is no precedent in the Quran, Sunnah, and Islamic jurist’s points of view that intangible property, such as intellectual property, be regarded as a form of private property and be eligible for selling and purchasing. In addition, according to this notion, knowledge in Sharia does not belong to one person, and no one can prevent others from acquiring it as that would lead to a monopolization of knowledge that Islam does not recognize or approve.⁷⁷ Furthermore, there is another perception, namely that “Sharia does not accept IP as it is a tool imposed by the West, which would be no benefit to the Muslim community”. Furthermore, the opponents of intellectual property claim that the primary sources of Sharia (Quran and Sunnah) do not provide for the legal protection of intangible things.⁷⁸ They also claim that intellectual property rights are “against Sharia as long as the laws permit the owner to impose restriction on the end user after selling the item containing the intellectual creation”.⁷⁹ Likewise, other scholars argue that protecting intellectual property impedes other people from benefiting from knowledge. According to them, this impediment stands in opposition to the Sunnah.⁸⁰ Prophet Mohammad said that “the one who conceals knowledge would appear on the day of resurrection as reined in a bridle of fire”. This Hadith is directly related to a rejection of copyright protection.⁸¹

The proponents of protecting intellectual property rights argue that “there is nothing in Sharia that enjoins or contravenes protecting and enforcing intellectual property rights and the Muslims should abide by their contracts and laws applied in their countries”.⁸² In addition, there are certain arguments in the Islamic jurisprudence which justify the protection of intellectual property rights. Islamic scholars, by

76 -Steven D. Jamar, The Protection of Intellectual Property Under Islamic Law, 21 Capital University Law Review, 1079 (1992), p. 1094. [hereinafter Steven D. Jamar, The Protection of Intellectual Property Under Islamic Law].

77- Heba A. Raslan, Shari’a and the Protection of Intellectual Property, p. 502.

78 -Ezieddin Mustafa Elmahjub, Protection of Intellectual Property in Islamic Shari’a and the Development of the Libyan Intellectual Property System. PhD thesis. Queensland University of Technology (2014), p. 65. [hereinafter Eziddin Mustafa,

Protection of Intellectual Property in Islamic Sahria]. Available at:

https://www.google.com.af/?gws_rd=cr,ssl&ei=hkuSVuj7A4f8swG_lbnQAw#q=protection+of+intellectual+property:+Its+re ality+and+Its+Shari%27a+Rule

79 - Heba A. Raslan, Shari’a and the Protection of Intellectual Property, p. 502.

80 - Ezieddin Mustafa Elmahjub, Protection of Intellectual Property in Islamic Shari’a, p. 65

81 - Ezieddin Mustafa Elmahjub, Protection of Intellectual Property in Islamic Shari’a, p. 65.

82 -Heba A. Raslan, Shari’a and the Protection of Intellectual Property, p. 502.

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referring to the Islamic sources, recognize intellectual property rights as a concept involving personal rights, money/wealth rights and property rights.

By and large, Sharia acknowledges the right of a person to “accumulate and generate wealth and the right of ownership and possession”. It has been recognized that a person has the right “to reap the fruit of his labour and effort”. Therefore, intellectual property is considered as a legal personal right.⁸³ Property is sacred under Islamic law. Moreover, Islamic law recognizes private property and ownership.

Accordingly, a person who owns intellectual property deserves to collect and receive the benefits from that property.

Likewise, Islam has adopted the right of a person to have money and wealth as parts of his property or assets, and people have the right to collect such money and wealth by legal means.

Therefore, intellectual property, as a form of wealth, is eligible for protection. Resorting to illegal means for collecting wealth is strongly prohibited in Islam.⁸⁴

Most importantly, intellectual property is considered a type of property. According to Islamic law, all kinds of property originally belonged to God, but have been granted to people. Therefore, the Quran recognizes the rights of private ownership, and trespassing against another’s property is thus considered a violation of Sharia.⁸⁵

It is noteworthy that two main religious opinions, or Fatwa, concerning the protection of intellectual property rights have recently come from the Council of the Islamic Fiqh Academy⁸⁶ and the Fatwa Committee of Al-Azhar University.⁸⁷ The Council of the Islamic Fiqh Academy, regarding the protection of intellectual property, issued the following opinion (Fatwa), which is an important source for the modern governments to issue statutory laws and regulations for protection of intellectual property rights and trademarks. The Fatwa states: “Business name, corporate name, trade mark, literary production, invention or discovery, are rights belonging to their holders and have, in contemporary times, financial value which can be traded. These rights are recognized by Sharia and should not be infringed”. The Fatwa also recognizes intellectual property rights as financial rights: “It is permitted to sell a business name, trade mark for a price in the absence of any fraud, swindling or forgery, since it has become a financial right”. Regarding copyrights and patents and their owners, the Council of Islamic Fiqh states the following: “Copyrights and patent rights are protected by Sharia. Their holders

83 - Amir H. Khoury, Ancient and Islamic Sources of Intellectual Property Protection in the Middle East, p. 164.

84 -Javaid Iqbal and others, Intellectual Property Rights in Islam, p. 160.

85 - Amir H. Khoury. Ancient and Islamic Sources of Intellectual Property Protection in the Middle East, p. 166.

86 - Arabic link: http://www.iifa-aifi.org/

87 - http://www.islamopediaonline.org/websites-institutions/al-azhar-university-fatwa-committee-cairo-egypt

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are entitled to freely dispose of them. These rights should not be violated”.⁸⁸ This Fatwa shows that Islamic law indeed recognizes and seeks to protect all forms of rights pertaining to intellectual property.

At the same time, the Fatwa Committee of Al-Azhar University issued an opinion in 2000 and 2001, which states that “Islam gives the owner the freedom to dispense of the property owned thereby as he wishes; no other person may dispose of, copy, enjoy, use or attribute such property thereto without the prior consent of the owner, whether for compensation or not”.⁸⁹ This Fatwa shows that intellectual property is considered property, and that its owner has sole authority and rights to benefit from it.

One important issue should be noted. According to Islamic principles, intellectual property rights, as part of property, do not relate to or depend on “the entity of the owner or his religious beliefs”.

Consequently, the property rights equally apply to Muslim and non-Muslim owners of property.⁹⁰ In fact, while Sharia does not explicitly and clearly recognize and protect intellectual property rights, referring to different sources of Islamic law reveals that the notion of protecting intellectual property has been acknowledged by Islamic scholars. In reality, there are no explicit provisions in the main sources of Sharia that limit the ownership of property to tangible assets. Therefore, in Sharia, the word “property” has a broader meaning encompassing both tangible and intangible objects. Moreover, different sources of Sharia law (Sunnah, Ijma, Qiyas, Maslahah, and Urf) authorise the state to enact laws and regulations for the protection of property in general, and intellectual property in particular.⁹¹ 1.4. Historical development of trademark law in Afghanistan

As discussed earlier in this chapter, codification in Afghanistan began in 1880. However, the evolution of the legal protection of trademarks⁹² started with the adoption of the first Trademark Law in 1960 comprising 31 Articles.⁹³ It is noteworthy that, prior to this law, the ACOMC had been enacted in 1955 and remains valid today.⁹⁴ Articles 119 and 120 of the ACOMC, for the first time, named and

88 - Islamic Fiqh Academy. Resolutions and Recommendations of the Council of the Islamic Fiqh Academy 1985-2000, First edition, 2000, p. 89. Available at: https://uaelaws.files.wordpress.com/2012/05/resolutions-and-recommendations-of-the-council-of-the-islamic-fiqh-academy.pdf

89- Heba A. Raslan. Shari’a and the Protection of Intellectual Property, p. 503.

90- Amir H. Khoury, Ancient and Islamic Sources of Intellectual Property Protection in the Middle East, p. 166.

91-Bashar H Malkwai, Intellectual Property Protection from a Shari’a Perspective, Southern Cross University Law Review, Vol. 16 (2013), p. 94. [hereinafter Bashar H Malkwai, Intellectual Property Protection from Sharia Prospective].

92 -The terms “mark” and “trademark” are used synonymously. For more details, see: Traci L. Jones. Remedy Holes and Bottomless Right, Law and Contemporary Problems, Vol. 59: No. 2, (1996), p. 159. [hereinafter Traci L. Jones, Remedy Holes].

93 - Ministry of Justice, Trademark Registration Law, Official Gazette, Issue No. 100 (1960). [hereinafter ATMRL].

94 - It has 945 Articles regarding all commercial issues. Official Dari version is available at:

http://www.moj.gov.af/content/files/egov/osolnama.htm.

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recognized trademark rights⁹⁵ as part of a commercial firm’s or company’s capital. Article 119 states:

“Items taken as capital in commercial firms are as follows:

a. Movable material goods, as such, articles, and animals.

b. Non-material movable goods, such as royalties, patents and trademarks”.⁹⁶

This Article proves that the ACOMC, for the first time, used the term ‘trademark’ in defining capital or property, and that it required legal protection. Furthermore, Article 120 of the ACOMC defines the components of a business firm. It states that “the right of establishment, of rent, of name, of title, of patent, of trademark, of models and drawing which are used in commercial and industrial services, are considered as elements of the business firm”.⁹⁷ Therefore, according to this Article, the term “trademark” had been used within the legal literature of Afghanistan, and the legal system of Afghanistan acknowledges trademarks as a component of a firm or company’s assets.

Prior to the 1960 Trademark Law, these two Articles had been the only legal sources pertaining to the legal protection of trademarks in Afghanistan. However, the ACOMC did not define the function of a trademark, nor did it provide more details about its legal protection. Therefore, the new law was necessary for protecting the rights of traders, and for encouraging and providing national and international investors with an incentive to invest, thus opening the door for economic development in this regard.⁹⁸ According to the ACOMC, trademarks constitute assets and capital, and provision should thus be made in a specific statutory code to protect their owners from misuse by competitors.

Furthermore, the commercial law reform process in Afghanistan gained significant momentum under the Afghan government of 2002. Between 2002 and 2009, the government of Afghanistan, in close cooperation with international organizations,⁹⁹ started working to review and adapt the commercial laws of Afghanistan in different fields.¹⁰⁰

One of the main reasons behind said legal reform was the application for accession to the WTO by the Afghan government in 2004. One of the requirements for accession to the WTO was to revise and adopt the commercial laws of the country so that they are consistent with the WTO’s requirements.

95 - “Trademark right is the privilege to use a mark upon or in connection with a certain class of goods and service together with multital rights that others do not use this mark and service.” (see W. L. P. A. Molengraaff, The Nature of The Trademark. The Yale Journal, Vol. 29. No.3, 1920, p. 305. [hereinafter Molengraaff, The Nature of The Trademark].

Available at: http://www.jstor.org/stable787165.

96-Ministry of Justice, Afghanistan Commercial Code, Official Gazette, Issue No. 89, (1955), Art. 119.[hereinafter ACOMC].

97 - ACOMC, Art. 120.

98 -Jacqueline Klosek and John Merce, Revising the 1960 Trademark Law for future economic growth, Rebuilding Afghanistan, Trademark World, #161, 2003, p. 27. Available at:

http://www.goodwinlaw.com/~/media/C5DEE3F8422549C19600C20E3AAAF50E.ashx. last visited on December 16, 2016.

99 -Adam Smith-ASI, USAID-EGGI, USAID-TAFA, GIZ-NAWI and the World Bank, etc.

100 - Hervé Nicolle, Commercial Law Needs Assessment, (2011) p 51. Available at: http://samuelhall.org/wp-content/uploads/2011/05/Commercial-Law-Needs-Assessment.pdf

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Accordingly, in 2009, the new Afghanistan Trademark Registration Law (ATML) was enacted. The ATML has 36 Articles and replaced the 1960 Trademark Law. After its enactment, the WTO required that the ATML be revised so as to be consistent with the TRIPS and other international agreements concerning intellectual property rights. Subsequently, Articles 3, 6, 8, 11, 13, 21, 22, 25, 26, 30 and 31 of the ATML were amended in 2015.¹⁰¹ Details concerning these Articles are provided in Chapter Two of this thesis.

1.5. Legal foundations/sources of trademark law in Afghanistan

According to the legal system of Afghanistan, there are different sources of trademark law. At the outset, these sources can be divided into two main categories: national sources and international sources.

1.5.1. National sources

National sources for trademark law in Afghanistan are: Afghan constitution of 2004, statutory laws, court decisions or precedence, and commercial customs.

1.5.1.1. Afghan constitution of 2004

The constitution provides an explicit and direct legal foundation for copyrights and patents, but does not explicitly stipulate trademarks. With regard to patents and copyrights, Article 46 (2) provides legal foundations for their clear and direct legal protection: “The state guarantees the rights of authors, inventors, and discoverers, and encourages and supports scientific researches in all areas, and publicizes the effective use of their results in accordance with the law”.¹⁰² According to this Article, trademark law does not enjoy such recognition. Therefore, for the judicial and legislative branches, Article 46 does not provide legal protection for trademarks.

However, Article 11 of the constitution is a general trade and commerce clause. Since trademarks are considered a commercial issue, the regulation of trademark affairs falls within the scope of Article 11, as it states that: “Affairs related to domestic and external trade shall be regulated by law in accordance with the needs of the national economy and public interests”. ¹⁰³ Therefore, Article 11 of the constitution of 2004 is deemed the first and primary source for trademark law. Accordingly, the ATML

101- The amendments were issued in the Official Gazette, issue No. 1168, 2015. These amendments occurred in the following Articles: Subparagraph (2) of Article 3, Paragraph (1) of Article 11, Paragraph (1) of Article 13, Subparagraph (7) of Paragraph (2) of Article 18, Article 21, Sub-paragraph (4) of Article 22, Article 25, Paragraph (1,2) Article 26, Article 31 and Paragraph (1) Article 31. These amendments are discussed in the next chapters.

102 - Afghan 2004 Constitution, Art. 46.

103 - Afghan 2004 Constitution, Art. 11.

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takes its authority from Article 11 of the constitution, as Article 1 of the ATML states: “This law is enacted in the light of Article 11 set forth in the Afghan constitution”.¹⁰⁴

1.5.1.2. Statutory laws

As has already been noted, the codification of specific trademark laws dates back to the early 1960s.

Since that time, fundamental and significant legal provisions have been created that pertain to the establishment of trademark rights, their enforcement and effectiveness. In 2009, the ATML was enacted as a response to the current and recent economic and legal developments in Afghanistan. The ATML focuses on substantive issues as well as procedural and formal aspects of trademark rights.

In addition, there are further laws that are connected or related to the legal protection of trademarks. For instance, Article 491 of the ACC generally provides that intellectual property shall be

In addition, there are further laws that are connected or related to the legal protection of trademarks. For instance, Article 491 of the ACC generally provides that intellectual property shall be

Im Dokument Trademark protection in the legal system of Afghanistan (Seite 26-0)