Law Vision
GIs protection: where do we stand legally?
The issue of Geographical indication (GI) in the context of Bangladesh became sensational when it was brought to the knowledge of the people that many of our products like Jamdani, Fazli mango and Nakshikantha from Bangladesh are going to be designated as the products of another Country through GI protection and we started rethinking of the protection of these products including many more. Given that as a member of international community we cannot involve in any confrontation we need to address the issue within the bounds of law-national and international.
Geographical indication has received its international acceptance as legal concept for the first time after its inclusion in Trade Related Aspects of Intellectual Property Rights (TRIPS). GI is recognized, inter alia, as an intellectual property under TRIPS with collective ownership which links a product with its place of origin and producers of good. GI is more specifically defined by TRIPS as “…. for the purposes of this agreement, indications which identify a goods as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the goods is attributable to its geographical origin” under section 22(1).
Article 22 (2) of TRIPS agreement without specifying the legal means only sets the minimum standard for the protection of GI, leaving ample opportunities for the members to draft GI protection regime under their municipal system considering the socio-economic conditions of the respective countries. In accordance with, many countries round the globe have enacted GI laws towards the protection of their agricultural and traditional products. In line of that Bangladesh drafted a law in 2011. With the passing of the law, many agricultural and traditional products including Jamdani, Fazli Mango, Nakshikantha can be registered as GIs under Chapter IV. Even unregistered GI is protected under section 5(a) of the draft Act on proof of geographical nexus between the products and given territory.
Referring the issue that a community from Andhra Pradesh, India applied for the registration of a fabric as “Uppada Jamdani” many opine that we can designate our Jamdani as “Dhakai”. The idea is futile in a sense that if jamdani is designated as “dhakai” then the term “jamdani” will become 'generic' and will be devoid of any distinctiveness as GI. Moreover, section 7(g) of the draft Act prohibits the registration of 'generic' GIs. Whether a given product is 'generic' or not is a factual question to be judged circumstantially. The test lies in whether the potential consumers of the product signify the GI as distinctive or not. So it is the responsibility of the stakeholders to prevent the use of the term 'jamdani' from being generic by preventing the use of any other qualifying word like “Dhakai” or “Tangail” or anything else.
'Fazli mango' and 'Nakshikantha' are the products which are common to Bangladesh and West Bengal of India. Again within Bangladesh 'Nakshikantha' varies in its form and weaving pattern from place to place. In this regard both section 7of the draft GI Act of Bangladesh and section 10 of The Geographical Indications of Goods (Registration and Protection) Act, 1999 of India have made provision for the registration of 'homonymous' GI if they are true to their place of origin. Considering this, it is the concerned authority who actually decides the conditions of registration of 'homonymous' GI considering the practical implications after ensuring equitable treatment to all the producers and traders, as the case may be.
The abovementioned legal protections can only be availed when the draft GI law will be passed by the parliament. As it is mentioned in Article 24(9) of the TRIPs agreement that-“There shall be no obligation under this agreement to protect geographical indications which are not or cease to be protected in their country of origin, or which have fallen into disuse in that country”. Thus it follows that if GI is not protected within the territory of Bangladesh under our municipal system, no reciprocal responsibility lies with the other member of WTO (World Trade Organization) to protect the same. So, for the sake of national interest there is no alternative but to pass GI protection law in no time.
The writer is Lecturer, School of Law, BRAC University.
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