http://www.thefinancialexpress-bd.

com/2014/07/05/43211
Posted : 05 Jul, 2014 00:00:00

Protecting Jamdani: Is the GI Act sufficient?

M.S. Siddiqui


Jamdani is a designed fabric developed and produced in the Narayanganj region, adjacent
to Dhaka, with a craftsmanship in which local artisans excel in an environment of specific
moisture content grown out of the Shitalakkya river water. It is the livelihood for some
30,000 weaver families.

Jamdani, a variety of the century-old Muslin, is a Geographical Indication (GI) product of
Bangladesh. The fabric is a symbol of our heritage as recognised by the UNESCO.
Bangladesh has long been exporting Jamdani saris and other clothes to many parts of the
world. At present India is the largest importer of Jamdani fabric manufactured in
Bangladesh. Interestingly, India is also exporting Jamdani to other countries by taking
advantage of the poor legal and commercial protection of the fabric in Bangladesh. We are
losing large sums of foreign currency to India.

Bangladesh was sitting idle when India registered Jamdani and their other products under
their Geographical Indication (GI) Act. The GI products like Jamdani may be protected with
the registration of the items under our own national laws and some other measures.

Recently, India has imposed customs duty on Jamdani of Bangladesh origin. India now has
the legal right to seek ban on export and even local trade in Jamdani as a Bangladeshi-
origin product. Finally, Bangladesh has enacted its GI legislations for the country to put in
place national intellectual property laws in compliance with its obligations under Trade-
Related Aspects of Intellectual Property Rights (TRIPS).

TRIPS defines GI as an 'indication' that identifies a product as originating from a particular
place, where a given quality, reputation or other characteristics of the product are
essentially attributable to its geographical origin. Also a GI gives exclusive right to a region
(town, area or country) to use a name for a product with certain characteristics that
correspond to their specific location. It has been left to the discretion of the government to
decide which products should be accorded higher levels of protection.

Bangladesh Parliament has finally passed the Geographical Indications of Goods
(Registration & Protection) Act, 2013 (GI Act); and the Geographical Indications of Goods
(Registration and Protection) Rules, 2014 (GI Rules) has been drafted and is awaiting final
approval of the authorities. The law has only sui generis system of protection for GIs with
the enactment of a law exclusively dealing with their protection.

The World Trade Organisation (WTO) Rule 22 is not sufficient to protect the GI products. A
producer not belonging to the geographical region indicated by a GI may use the indication
as long as the product's true origin is indicated on the label, thereby free-riding on its
reputation and goodwill. The TRIPS agreement did not limit the scope of the national GI Act
and any nation can make provision for protecting the GIs with customised law for its own
GIs and that of other WTO member-countries. The WTO rule in Articles 22 and 23 for
protection of GIs has exceptions in Article 24. In some cases, geographical indications do
not have to be protected or the protection can be limited. The exceptions that the
agreement allows include: when a name has become the common or 'generic' term
('cheddar' now refers to a particular type of cheese not necessarily made in Cheddar in the
UK), and when a term has already been registered as a trademark.

Bangladesh GI Act has defined generic name in the light of TRIPS definition. The product
having an indicating name of place first produces, extracts and the product gets a common
name of indicative place with class, characteristics and quality. The Bangladesh law limits
the scope of the generic name only to the product having the indicative name of a place.
Jamdani is not the name of a place. The much-talked-about Jamdani is not indicating the
name of a place like 'Champagne', 'Tequila' or 'Roquefort'. Bangladesh can protect the rights
of Jamdani and other products with a wide definition of the generic name, so that none can
try to brand Jamdani as a generic name.

The definition of the generic name may be the name of a biological genus, international
non-proprietary name, a common name used for a range or class of similar things not
protected by trademark, a brand name that has become the generic name for a product or
service, a placeholder name. Geographical indications are place names (in some countries
also words associated with a place) used to identify products that come from these places
and have these characteristics.

The definition of GI products (sl no. 9) is also not complete, and it should be widened with
the "geographical indication" which means any indication which identifies a goods as
originating from a place, provided that (a) the place is a qualifying country or a region or
locality in the qualifying country; (b) a given quality, reputation or other characteristic of
the goods is essentially attributable to that place.

A "qualifying country" means any country or territory which is (a) a member of the World
Trade Organisation (WTO); (b) a party to the Paris Convention; or (c) designated by the
Bangladesh authority as a qualifying country. The authority may, by notification in the
Gazette, designate any country or territory as a qualifying country for the purposes of this
Act.

There are a few other laws under the Intellectual Property category. Bangladesh law has no
such provision to keep harmony with other laws. Our law must have the provision to avoid
conflict of interest with a provision in the GI Act that nothing in the GI Act shall affect the
rights of a person under the Trade Marks Act or the law relating to passing off etc.

The definition of manufacturers (sl no. 3) shall be replaced by 'business' to include the
trading, dealing, production exploitation, making or manufacturing, as the case may be, of
the goods to which geographical indication relates.

GI products are very lucrative in international trade and the law must also define the
traders as well. A 'trader', in relation to goods, means any person who sells the goods in
Bangladesh and export from Bangladesh to any other countries; or the law limits the
applicants to registered associations under existing other laws but not any individual. The
law should make provision for allowing a person who is carrying on an activity as a producer
in the geographical area specified in the application with respect to the goods specified in
the application, and includes a group or groups of such person; (b) a competent authority;
or (c) a trade organisation or association.

The GI Act is a national law and it must also protect GIs of other countries as per TRIPS
agreement. The geographical indication, for which registration is sought, relates to a
qualifying country outside Bangladesh, shows that the GI applied for has obtained
recognition or registration as a geographical indication in the qualifying country of origin.

GI is a very technical issue covering the origin, genus etc. A genus (plural: genera) is a
taxonomic rank used in the biological classification of living and fossil organisms. In the
hierarchy of biological classification, genus comes above species and below family. In
binomial nomenclature, the genus name forms the first part of the binomial species name
for each species within the genus. The law should have provision of outsourcing of technical
advice from experts of different disciplines to render an opinion with regard to any matter
before the Registrar for the performance of any of his functions under this Act.

Our law has the clause of 'fixing the fair price' of GIs (clause 7-2). But the GI law refers to
registration of protection of the GI for the producers and users. The fixing of price has no
relevance to this law.

Our law has no protection for offices by government and government corporate bodies,
although the government is also in business along with private businesses. There should
some provisions: (1) Where an offence under this Act committed by a body corporate is
proved (a) to have been committed with the consent or connivance of an officer; or (b) to
be attributable to any neglect on his part, the officer as well as the body corporate shall be
guilty of the offence and shall be liable to be proceeded against and punished accordingly.

The 'Geographical Indications of Goods (Registration and Protection) Rules, 2014 (GI Rules)
can correct some of loopholes of the law to protect the national interest of the GIs. It can
qualify the some of the definitions of generic and GI products; it can have a clause to keep
relations with other IP law of the country. It can make wide definition to include all
categories of business including trades like export, import and local trade. The rule can
widen the list of applicants to cover the individuals, not only registered associations and GIs
from other WTO countries. The rule can extend the law to cover the government and public
corporations under the jurisdiction of the law.

There will be a list of users under the law for any GI product, and the users like the weavers
of Jamdani may not be in a position to comply with the long and complicated procedure of
registration. The registration and inclusion of the names in the user-list should be simplified.
The proposed rule has asked for application in A-4 white paper, and it should be
preserveable, readable and permanent (clause 10). There is no justification in asking for a
specific size of the application paper and the words 'preserveable', 'readable' and
'permanent' are vague and subject to interpretation.

The GI product owners and users are usually poor, and comprise the illiterate sections of
the country. The regulators should undertake promotional activities to preserve the heritage
of the nation. The relevant rule may have the provision for promotional and advocacy
aspects for the regulating authorities.

The writer is a Legal Economist. Email: shah@banglachemical.com