Geographical Indication
Immediate enactment of GI Act can ensure GIs protection
Asma Al Amin
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fe-bd.com |
Geographical Indications (hereafter GIs) under the Trade-Related aspects of Intellectual Property Rights (hereafter TRIPS) has been the subject of vigorous scholarly debate across the world in the last decade. The TRIPS is the first multilateral text providing for a comprehensive protection of GIs. With Intellectual Property Rights (hereafter IPRs) increasingly influencing rates both at the national and international level; harnessing trade benefits depends on the degree of protection enjoyed by the owners of the IPRs. Geographical Indication (GIs) is defined as any indication that identifies a good as originating from a particular place, where a given quality, reputation or other characteristics of the good are essentially attributable to its geographical origin. GIs may be associated with agricultural, manufactured or industrial goods. Non-agricultural products, which typically qualify for GIs protection include handicrafts, jewellery, textiles, etc. (WTO, 2004). It provides for (a) a base-level protection for geographic indications related to all products; (b) an additional protection for wines and spirits; and (c) an extra-additional protection only for wines.
Concept of Geographical Indication (GIs)?
There is no universally accepted definition of a GIs, but this description, derived from international agreements, best captures the universal spirit of the concept:
A Geographical Indication identifies a good as originating in a delimited territory or region where a noted quality, reputation or other characteristic of the good is essentially attributable to its geographical origin and/or the human or natural factors there.
In most cases, GIs have been formally used and accepted as such in trade and in legal records. They may be registered or protected in different forms; these can include formal sui generis systems, trademarks, certification marks, collective membership marks, and denominations of origin. Sometimes, they are not formally protected and may be recognized due to accepted common use. In many cases, certain GIs are protected in one country but not in another or the forms and scope of protection are often different from country to country.
The term “Geographical Indication” has been around for many decades, but it is really since the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) entered into force in the mid-1990s, that it has come into common use. The TRIPS Agreement, Article 22, paragraph 1 contains the following description:
Geographical indications are, for the purposes of this Agreement, indications which identify a good 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 good is essentially attributable to its geographic origin.
Geographical Indication; Bangladesh Scenario
Bangladesh one of the founding members of the WTO yet to develops strategy to implement the TRIPS agreement and to serve its interest. Government promulgated Trademark Act 2009 to meet the TRIPS requirements. In fact, there is no direct provision in the Copyright, Geographical Indication and Trademark law to prevent exploitation of traditional knowledge and local practices. It is still unclear what would be the possible effects of these laws in Bangladesh. On the other hand, Government of Bangladesh. is almost silent regarding the interest in agriculture, biodiversity, plant varieties, geographical indication etc. Unless a geographical indication is protected in the country of its origin, there is no obligation under the TRIPS agreement for the other countries to extend reciprocal protection. It is a challenge to Bangladesh since it shares a common heritage with other countries in the region but has not yet a GIs law in place. India has already registered about 158 products like Fazlee Mango and Jamdani Saree under a legislation named “The Geographical Indications of Goods (Registration and Protection) Act, 1999”. Many of such products actually originated in Bangladesh.
The government has already drafted the Geographical Indication Act, 2011 with an aim to ensure entitlement to the country's traditional products and protect the reputation of these products against piracy. The ministry of Industries, which has prepared the draft law, gathered feedback from the stakeholders and is examining the feedback to finalise the draft Act considering article 27.3(b) of the TRIPS Agreement. Bangladesh is in the process of making a GI Act for about seven years and the draft is available to the citizens for opinion. But yet this Act is not passed by the parliament.
Need for legal protection of Geographical Indications
In the absence of the GI Act in the country, Bangladesh is going to lose its rights on some traditional products. India has opened a register of what is known as Geographical Indicator (GI) of its products. Every member of the World Trade Organization (WTO) which abides by the Trade Related Intellectual Property Rights (TRIPS) Agreement is required to do this. Under Sections 22, 23 and 24 of this Agreement, individual countries have now the right to protect and patent famous, exceptional and extraordinary products originating within the geographical territory of the country. Under the Geographical Indications of Goods (Registration and Protection) Act, 1999, India has thus registered (uppada) jamdani sari as originating from Andhra Pradesh, the nakshi kantha from West Bengal and fazli mango from Malda district in West Bengal. Jamdani is a unique Bangladeshi handloom product with a glorious history and unique creativity and Bangladeshi weavers make this fine cloth for thousands of years. But the sale of Jamdai might decrease as India holds the entitlement of the product; this can be prevented only by enacting an Act for which Government's utmost sincerity is vital. We can also register the jamdani sari of Dhaka, the naskhi kantha from Faridpur, Monipuri clothes, khadi of Comilla, hilsa fish from Chandpur, the fazli mango of Rajshahi, curd of Bogra, dry fish from Chittagong and dogs from Sarail in Brahmanbaria as well as honey from our Sunderban forest by passing an Act.
It is true that there is no research from the Bangladesh perspective on potential benefits from GIs protection. While many studies have been done in Europe, even in India on the issue, no systematic assessment has been undertaken by the relevant agencies of Bangladesh for identifying the products to be accorded GIs status. So it is time that our ministries of Industries, Agriculture and Commerce, separately and together, under the aegis of the Prime Minister's Office, start identifying products that originate in Bangladesh and which need to be urgently registered under the GIs Act. But in order to do that, we need to enact the Draft Geographical Indication Act, 2011 and frame rules under it. We have to move fast with our committed effort to prevent some other country from listing our unique products and calling them their own. Any affirmative action by our government in such matters can ensure our entitlements. Coleridge had once said: "Silence does not always mark wisdom." We must heed his advice in this case.
The writer is an Apprentice Lawyer at Chittagong District Judge Court.
