http://www.thefinancialexpress-bd.com/2015/08/06/102848

VOL 22 NO 260 REGD NO DA 1589 | Dhaka, Thursday, August 06 2015 Bottom of FormThe Lisbon Agreement and the fate of Jamdani sariM. S. Siddiqui

A Geographical Indication (GI) is a sign which effectively specifies the geographical origin, quality, reputation or characteristics of goods - place of origin of the goods is the basis of such attribution. An Appellation of Origin is a similar type of sign, but its usage includes stringent criteria.

The protection of the GI originates from economic and cultural standpoints. GIs allow for product differentiation as they essentially distinguish products from one 'producing source' or origin from those of another producing source - almost like a 'brand' in its own right. In the cultural context, GIs are the considerable means of preserving the heritage and tradition reflected by a particular product. Therefore, the developing countries regard the GIs as a tool for using intellectual property to protect categories of local rural knowledge that they possess in abundance.

Likewise, A GI is "any indication used in trade to identify goods as originating from a place, provided that: (a) the place is a qualifying country or a region or locality in the qualifying country; and (b) a given quality, reputation or other characteristic of the goods is essentially attributable to that place." - such as the cognac and champagne from France, Darjeeling Tea from India, feta cheese from Greece, Parma ham from Italy, and Sarawak pepper from Malaysia.

Apparently, World Trade Organisation Agreement on Trade-Related Aspects of Intellectual Property Rights (WTO-TRIPS) covers many aspects of the intellectual property rights. The TRIPS Articles 22, 23 and 24 are particularly concerned with the protection of GIs. They stipulate the minimum standards to which each signatory must adhere to as part of its own internal legislation, as set out in Article 22 of the TRIPS Agreement.

Moreover, World Intellectual Property Organisation (WIPO) has successfully concluded the Diplomatic Conference to revise the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, held at Geneva in Switzerland on May 11-21, 2015. The Lisbon Agreement for the Protection of Appellations of Origin and their International Registration was originally concluded in 1958. Other changes affect fee provisions, scope of protection, protection against generalisation, and safeguards for respect of prior trademark rights.

The Lisbon Agreement provides for the protection of appellations of origin - the "geographical denomination of a country, region, or locality, which serves to designate a product originating therein, the quality or characteristics of which are due exclusively or essentially to the geographic environment, including natural and human factors".

Additionally, the WIPO Conference adopted the Geneva Act of the Lisbon Agreement, with three key improvements: (a) widening its scope to cover all geographical indications; (b) modernising it to ensure full compatibility with the evolving international legal framework for Intellectual Property Rights, in particular the WTO-TRIPS Agreement; (c) creating the possibility for international organisations, including EU, to become a full member. The Geneva Act is not a new treaty or agreement but a mere a revision or update of the Lisbon Agreement to include GIs alongside the Appellations of Origin.

The Geneva Act also extends the current Lisbon Agreement to cover the GIs - Appellations of Origin and GIs both require a qualitative link between the product to which they refer and its place of origin. Both inform consumers about a product's geographical origin plus the quality, characteristic or reputation (for geographical indications) of the product linked to its place of origin.

However, the quality or characteristics of a product protected as an appellation of origin must result exclusively or essentially from its geographical origin - the raw materials should be sourced in the place of origin and that the processing of the product should also happen there.

In the case of GIs, a single criterion attributable to geographical origin is sufficient for the geographical indication to qualify as such, which may also be the specific reputation of the product. Additionally, the production of the raw materials and the development or processing of a geographical indication product does not necessarily have to take place entirely in the defined geographical area.

Besides, the Geneva Act will unlock the process of international registration of additional specialty products and facilitate the international protection in countries which are contracting parties to the Lisbon Agreement - an incentive for producers to register their geographical indications and specialty products. Hence, joining the Lisbon Agreement becomes more attractive to countries which are yet to do so. Nevertheless, Bangladesh was not a member of the Lisbon Agreement and the country did not participate at the diplomatic conference and could not contribute to the negotiation process.

Other important provisions of the Geneva Act diversely concern the level of protection, the relationship with trade mark rights, national and international fees, and possible adherence of international organisations to the Lisbon Agreement.

The Geneva Act was signed by 11 countries - including Mali and Romania, two non-members of the Lisbon Agreement - subject to ratification. It will remain open for signature until May 20, 2016. Five instruments of ratification or accession are required to cause its entry into force. Unless all signatories to the Act of the Lisbon Agreement are not party to the Geneva Act, the latest act to which they are mutually party will govern the relations between parties to the Agreement until ratification and accession to the Act.

Interestingly, the TRIPS Agreement stipulates that GIs need not necessarily be geographical names (such as name of a town, region or country) to designate the origin of the goods to which they are associated and may have overlapping rights of different countries with similar environmental and cultural backgrounds. Some of the products like the Jamdani sari, Fazli mango and Nakshi Kantha contain justifiable elements for India to claim ownership of their GIs. India has already registered these products as Indian GIs under its own national law. There is even a conflict over GI ownership of Rashagollah (traditional sweetmeat) between two constituent states of India - West Bengal and Odisha. Bangladesh has legitimate claim over the GI right of Rashagolla. Reportedly, India has submitted application to our government so that Bangladesh withdraws the GI registration for Jamdani sari. Bangladesh cannot establish its legal right over its legitimate ownership of GI products until these are registered under Bangladeshi laws.

Furthermore, Bangladesh has passed the Geographical Indication Act in 2013 after continuous efforts from different stakeholders but the draft rule is pending thereafter and formation of a regulatory body is yet to set up. By this time, WIPO revised the Lisbon Agreement to update the protection of GIs. Bangladesh is about to lose valuable GI products due to the lack of sufficient policies, establishment, logistics and manpower in registering our GI products.

Bangladesh should give assent to Lisbon Agreement, ratify the Geneva Act of the Lisbon Agreement and approve the draft rule pending somewhere in a lengthy bureaucratic process until approval.

The writer is a legal economist.shah@banglachemcial.com