Providing GI tags to different products is not the end of the story  

Asjadul Kibria     | Published: February 04, 2019 21:51:26 | Updated: February 04, 2019 22:11:18


Another heritage product of Bangladesh comes under the protection of Geographical Indication (GI)-- a form of intellectual property right (IPR). It is Khirsapat mango of Chapainawabganj which becomes the third GI-tagged product in Bangladesh after Jamdani sari and Hilsha fish. It is also the second agriculture product which avails GI protection. The GI tag certifies that Khirsapat mango is a product of Chapainawabganj, a Northern-region district of Bangladesh and it has some unique features in taste and nutrition. GI tag also endorses that these features can be available only in the Khrisapat mango grown in Chapainawabganj region.

Interestingly, West Bengal of India has already provided GI tag to Khirshapat which is known as Himsagar mango there. In Bangladesh, some argue that Khirsapat and Himsagar are similar, while some claim these two are modestly different in taste. By providing GI tagging, the second opinion is recognised. Two other varieties, Laxmonbhog and Fazli mango of Malda district, have also availed similar tagging in India. These two varieties are also grown in the northern region of Bangladesh. Having similar climatic condition due to geographic proximity, many common varieties of mangoes grow in the adjoining districts of Bangladesh and West Bengal.

Now GI tagging to Bangladeshi Khirsapat mango and West Bengal's Khirsapat mango confirms that both the mangos of similar variety have still some differences  due to differences in geographic location. In the international market, it will help Bangladeshi Khirsapat mango to expose its uniqueness and there will be little scope of confusion in it. This type of GI is known as 'homonymous GI.'  To be precise, 'GI is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin.'

Earlier, there was a misunderstanding that once India provides GI tagging to any common product, Bangladesh will no more be able to claim geographic ownership of the same product. In reality, India or any other country can provide GI tagging to a common product but the protection is primarily applicable to the geographic territory of the country only.

The case of Jamdani may be mentioned in this connection. India registered Uppada Jamdani sari from Andhra Pradesh in 2009 as a GI product. The GI tagging gives the weavers of the East Godhavari district in Andhra Pradesh of India exclusive right for producing and marketing Jamdani sari by the said name. By doing this, India doesn't establish any legal claim on Dhakai Jamdani or Jamdani originating from Bangladesh. 

Nevertheless, Indian move to provide GI protection to Jamdani and some other common products stirred concern among local producers and trade experts in Bangladesh. Resentment also grew within the country for not taking any legal measure to ensure GI protection of local heritage products especially Jamdani. Some even wrongly claimed that Bangladesh was going to lose IP right of its own products, for ever and globally.

The resentment, however, worked as a catalyst to formulate the country's GI law and subsequent measures.  After enacting Geographical Indication of Goods (Registration and Protection) Act 2013 and Geographical Indication of Goods Rules 2015, the Department of Patents, Designs and Trademarks (DPDT) under the Industry ministry started full-fledged work to provide GI tag to selected products.

Being a member of the World Trade Organisation (WTO), Bangladesh has the obligation to give protection to GIs under Article 22-24 of the Trade-Related Aspects of Intellectual Property Rights (TRIPs) agreement.

The advantage of GI tagging is that it has to be clearly linked to a particular region. That's why, India or any country has no way to make a GI tagging to any product originating within the territory of Bangladesh. Without mentioning a particular region, no GI is valid. That's why, hilsha fish has received GI tag as 'Bangladesh Hilsha.' In a similar vein, by providing GI tagging to Khirsapat mango of Chapainawabganj, Bangladesh asserts that it has nothing to do with similar mango variety produces in India. But it is unclear why Jamdani has been tagged as Jamdani only, and not Dhaka Jamdani or Bangladesh Jamdani. The missing of a region or territory name with Jamdani GI tagging may be a matter of legal dispute in future and put the validity of the first GI registered product of the country under question.

One thing needs to be clear here. GI or any other form of intellectual property right like patent, trademark or design does not have any global protection. World Intellectual Property Organisation (WIPO) makes it clear by saying: "Geographical indication rights are territorial. This means that these rights are limited to the country (or region) where protection is granted. At present, no 'world' or 'international' geographical indication (GI) right exists." There are, however, some mechanisms to seek and avail multi-country GI protection. A producer may seek direct protection to a second country for product with GI tagging in home country. If there is any bilateral agreement between two countries in this regard, such protection may also be sought in the partner country. Moreover, there are two separate international systems under the umbrella of WIPO to file GI protection applications in more than one country at a time.  One is Lisbon System for the International Registration of Appellations of Origin, another is Madrid System for the International Registration of Marks. By filing a single application under these systems, anyone can seek protection to countries which have already joined these systems. But allowing protection to the products in other than home country is fully under the jurisdiction of those countries.  Patent Co-operation Treaty and Hague Agreement are two other such systems that facilitate to submit single application for patent and industrial design protection respectively in more than one country. Bangladesh is yet to join any of these systems.

Now, providing GI tags to different products is not the end of the story. It requires systematic campaign and co-ordinated efforts of governments and private bodies to tap the benefits of GI tagging. There are two broader benefits: cultural and trade. From the cultural perspective, GI helps to establish the tradition and heritage of a product of a region in a legal manner. It provides a legal recognition to a regional community and their long tradition of making or growing the products with some uniqueness. People in Chapainawabganj brought rally with joy after Khirsapat mango got GI certification. From the trade perspective, GI-tagged products may get better market penetration and avail higher brand value. These products may attract more consumers and fetch higher prices too.

While cultural benefit is indefinable, trade benefit is visible. But it will take time to tap the benefits and to do so, strict implementation of law is necessary so that fraudulence could be checked. In Bangladesh, counterfeiting and falsifying of any branded product is not uncommon.  The GI Act makes a clear provision of penalty of minimum six months imprisonment and/or Tk 50,000 fine for falsifying any geographic indication or falsely tagging GI to goods.

GI tagging also provides a strong tool to fight any international trade dispute in the World Trade Organisation (WTO). Currently, Bangladesh doesn't have GI tagging to Nakshi Kantha while India registered it with GI a decade ago. Now, if India files a case with the Dispute Settlement Body (DSB) of WTO claiming that the country alone produces and exports Nakshi Kantha, what will happen? It will be difficult for Bangladesh to assert its claim that it is also a producer and exporter of Nakshi Kantha since no GI tagging is there till now. While the legal dispute may drag on for years to settle, immediate impact will be a likely drop in the export price of Bangladeshi Nakshi Kantah. True, the product bears very little trade interest right now and it is the cultural orientation that prompted GI tagging. Nevertheless, scope of this kind of trade dispute in near future can not be ruled out.   

asjadulk@gmail.com

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