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Bangladesh finally gets her GI Law!

A B M Hamidul Mishbah
Bangladesh finally gets her GI Law!

Bangladesh Government has finally enacted the much awaited Geographical Indication (GI) Act on November 05, 2013. We can now register our goods and products deserving the GI tags. Bangladesh has a range of goods and products that have the characteristics of GI and would easily qualify to the GI league. Dhakai Jamdani, Nakshi Kantha, Fazlee Aam (Mango) from Rajshahi, Hilsha Fish from Chandpur, Rosh Malai from Comilla, Doi (Curd) from Bogra are the most notable ones amongst others. 

It may be recapped that GIs are a kind of intellectual property that are associated with culture, geography, heritage and traditional practices of people of a given country. GIs are produced in a certain geographical region, which has unique geo-climatic characteristics, and this makes them unique. They connect to the goods or products of a territory, or region or locality in that country, and establish a link between the locality and the quality, reputation or characteristics of such goods and product. 

Previously, the Draft GI Act 2012 got the approval of the Cabinet Division but was not placed at the Parliament as a Bill. Instead, the Draft Act was reverted back to the Ministry of Industries where it went through a lacerating surgery by the Department of Patents, Designs and Trademarks (DPDT) for some strange reason. DPDT slashed down almost 38 sections from the Draft GI Act 2012 and formulated the 2013 Act based on the mere excuse that the sections, that did not make it to the GI legislation, will eventually be placed in the GI Rules which is usually passed at a subsequent time. 

However, the 'Geographic Indication Act, 2013' has been entrusted to the DPDT who will open a separate unit titled 'Geographical Indication Unit' to carry out the activities related to registration and protection of GIs as purported under the Act. The Registrar of the DPDT will head the GI Unit. Under the GI law, any person representing the interest of the producers of GI goods or any lawful organization or association or government entity may apply, to the Registrar, for registration of GI goods or products, and any person or a group who are into producing the GI goods may apply for registering him/it as an authorized user of such GI goods or product. 

The provisions that sadly got slashed off contained number of specific provisions that are vital for the registration process. This is a matter of concern due to the fact that the enactment of GI Act was not that smooth. It required rigorous campaigns, demands made from various pressure groups and civil society, public consultations and follow ups done over a good number of years. Now it would be interesting to see, as to how long the concerned Ministry would consume to introduce the Rules under the 'Geographical Indications Act, 2013'. The Copyright Act in Bangladesh, for example, was enacted in 2000, and then it took 6 years for the relevant authority to introduce the Copyright Rules.   

DPDT's slashing spree did not spare the registered authorized user of GI goods too, whose tenure to use GI goods or product has been reduced to 5 years from 10 years as it was contemplated in the Draft GI Act 2012. A registered authorized GI user may however renew his or her registration as an authorized user, but only for a 3 years period though. The same provision in India's GI Act provides for a 10 years period. On the contrary, the tenure for the registration of GI goods or product has made to remain valid until the registration is cancelled or invalidated. This will allow the GI goods or products to avoid going through renewals after a certain period of time - thanks to DPDT's startling wisdom. 

'Appellation of Origin' is another important section that failed to make its way to the enacted legislation despite being visible in the Draft version. Appellation of Origin is a special kind of GI and works almost the same way GI does. The only difference between the two is that, in the case of an Appellation of Origin, the link between the goods and the place of origin must be stronger. For example, the production of the raw materials and the processing of same product or goods should be taken place at the place of origin. Under the GI system, the production of the raw materials and processing of a GI product do not necessarily take place entirely in the same geographical area. However, existence of the section titled 'Appellation of Origin' in the GI Act 2013 could have further benefitted Bangladeshi GI products or goods. 

Nevertheless, the enactment of the GI Act has now increased our tasks ahead. Bangladesh Government now has to take appropriate measures to protect and promote her GIs. With regard to the protection of GIs the first task would be to have all the GI eligible goods and products registered as GI. This will allow us to establish our absolute right over the GI goods or products belonging to Bangladesh. Bangladesh has identified a list of 73 food and non-food products that may qualify as GI. Once registered, a set of further but formidable steps has to taken to ensure that the Bangladeshi GIs do not get imitated by neighbouring countries, as it has happened in the case of Jamdani Saree, Nakshi Kantha and Fazli Aam. India has registered these three products (Uppada Jamdani Saree, Nakshi Kantha and Fazli Mango) in their GI list, and we do not know what are the other Bangladeshi GIs India is planning to imitate in future. This however should be the wake-up call for Bangladesh.

India’s act of imitation calls for further action taken at the Government level to establish our absolute right over the aforesaid products. There are number of ways that the Government of Bangladesh may try in this regard. Geographical Indications are usually protected in accordance with international treaties and national laws. And there is a wide range of models available. However, ensuring protection for GIs internationally has been complex due to variations in legal system among countries. 

The Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration could be the ideal option for Bangladesh. It provides the necessary platform to protect special category of GIs or Appellations of Origin in countries beyond the country of origin, simply through registration with WIPO. Bangladesh is yet to be a party or signatory to the Lisbon Agreement. Becoming a signatory to the Lisbon Agreement will however allow Bangladesh to register her GI products, i.e. Dhakai Jamdani, Nakshi Kantha, Fazli Aam, etc., as the products of Bangladesh, and this will prompt establishing Bangladesh’s absolute right over her GI goods and products. Besides, a Dispute Resolution mechanism, with regard to the absolute claim over the aforesaid three products (Jamdani, Nakshi Kantha, Fazli Aam), may be initiated by Bangladesh at the WTO level as per the provisions of TRIPS (Article 64) which is subject to Articles XXII and XXIII of the General Agreement on Tariffs and Trade (GATT), 1994. 

Moreover, the rights conferred by the GI laws allow the right holders to block third parties using the GIs that do not conform to the applicable standards. For example, producers of Darjeeling Tea can block or exclude use of the term ‘Darjeeling’ for teas not grown in their tea gardens or not produced according to the standards set out in the code of practice for the Geographical Indication, and this example may be applied in the case of Jamdani Saree, Nakshi Kantha and Fazli Aam (Mango) too.

 

 

The story was first published in INTELLECT Issue no.3, dated November 2013.

 

September 15, 2015
About Author

The author is an IP Practitioner and advocate at the Supreme Court of Bangladesh

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