Published : 19 Nov 2016, 21:31:01 http://www.thefinancialexpress-bd.com/2016/11/19/53612/Jamdani-registered-as-GI-product:-Lessons-from-Champagne-dispute
Jamdani registered as GI product: Lessons from Champagne dispute M. S. Siddiqui The 1996 Agreement on Trade-Related Aspects of Intellectual Properties Agreement (TRIPS) of 1996, of the world Trade Organisation (WTO) provides the most comprehensive multilateral treaty to enact and enforce intellectual property laws, including Geographical Indication Law. Geographical indications (GI) give the producers of a region the exclusive right to use the indication for their products originating from that region. It also means that they have the right to prohibit any unauthorised use, usurpation or imitation of the sign on a product that is not from the designated area or which does not have the qualities guaranteed by the GI. The GI right holders are also protected against any misuse, imitation or evocation, even if the true origin of the product is indicated or if the protected name is translated or accompanied by an expression such as 'style', 'type', 'method', 'as produced in', 'imitation', or 'similar'. The arguments in favour of protecting geographical indications include: (1) protecting the city's or region's reputation for quality; (2) preventing confusion of consumers; (3) encouraging the development of quality products in association with the name or mark; (4) protecting high quality and regional exports; (5) providing fair treatment; (6) strengthening competitiveness; (7) protecting cultural heritage, traditional methods of production, and natural resources; and (8) rewarding producers' investments in quality. TRIPS represents the minimum level of protection that WTO member countries are required to enact domestically. It is hailed as 'the most significant step in creating a uniform system for the international protection of all Intellectual Property, especially GIs'.TRIPS is the dominant international agreement dealing with intellectual property. It requires that members' domestic laws protect geographical indications. But legal and cultural clashes occur when international conventions dictate the adoption of new legal constructs into domestic law. GI product to be produced, processed or prepared in the geographical area needs have only one particular quality, rather than the majority of the good's characteristics, that is attributable to, rather than exclusively due to, the geographical area'. The definition of a GI mentioned in TRIPS Article 22 provides 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 geographical origin.
Indications of geographic origin fall into three broad categories: (a) Indications of source (indications de provenance): for example, "Made in Bangladesh". Such designations contain no implication as to the quality of the product. They merely indicate its geographical origin; (b) Appellations of origin (appellations d'origine): these impute to the product a characteristic quality that relates to geographic factors; and (c) Geographical Indications (indications gĂŠographique): sometimes used as a broad term encompassing both indications of source and appellations of origin. In the TRIPS Agreement emphasis has been given on a more specific meaning, in between the other two categories - more than a mere indication of source, but not necessarily meeting the high quality standards of an appellation of origin. The general standard focusing on protecting the consumer public from misleading geographical labels is also found in Article 22. The legal means for interested parties to prevent: (a) the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place or origin in a manner which misleads the public as to the geographical origin of the good. The legal methods and remedies for the enforcement of Article 22 are implemented subjectively into members' legal systems. GI holders may prosecute any other party liable to mislead the consumers as to the true origin of the product. The TRIPS agreement covers all products for standard protection (Article 22) and wine and spirit for special and higher level of protection (Article 23). There are exceptions also (Article 24). GI does not have to be protected or the protection can be limited. Among the exceptions that the agreement allows are: when a name has become the common (or "generic") term (for example, "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. INDIA VERSUS BANGLADESH: Indian Parliament passed the Geographical Indication of Goods (Registration & Protection) Act in 1999 and registered Jamdani as UPADAYA Jamdani as their GI product. Bangladesh was very late and passed GI act in 2012 and registered Jamdani in November 2016. There was a pressure from home and abroad to register it as DHAKAI Jamdani but the present government has correctly registered it as simply 'Jamdani'. It has been proven from various historical accounts and folklores that a fine quality of the fabric was available in Bengal as far back as the first century AD. Jamdani has been weaved in Dhaka district for centuries, especially on the bank of Shitalakkhya under a particular weather condition. The water of Shitalakkhya was used for making colour in the fine clothes. The weavers have developed the skill with experience of generations and designs developed by them are unique for each piece of the fabrics. Some Indian weavers, who might have moved there from Bangladesh territories, weave Jamdanilike fabrics and market those as 'UPADAYA Jamdani'. They are selling those in the Indian market and are also exporting to other countries as 'Jamdani'. After the registration of Jamdani under Bangladesh law, the use of UPADAYA Jamdani is no longer valid. But the matter may not be easy to address with India. THE CASE OF CHAMPAGNE: Champagne is a unique example of GI and relevant to the
Jamdani fabric. The word 'Champagne' is derived from the Latin 'campania', meaning open country. The Latin term is also the source of the English word 'campaign'. The Champagne wine region is within the administrative province of Champagne in the northeast of France. There is a large region of southern Italy also known as Campania, of which Naples is the capital. Wine was grown there by Greek settlers as early as the 7th century BC and wine-making has undergone a modern resurgence in the area. The town of Campania, in Tasmania Coal River Valley, Australia is a premier wine-producing region. In the Canton of Vaud, Switzerland, lies the tiny village of Champagne, where a wine, still bearing that name, has been made since 1657. It is at the centre of an on-going dispute with its more famous French namesake. In 1933, Canada and France entered into a treaty to protect GIs nominated by the respective countries. One of the terms included by France was CHAMPAGNE. This posed a problem, as the term CANADIAN CHAMPAGNE had been used on sparkling wine made in Canada since 1927. No action was taken under the treaty to stop such use until the French Institut National des Appellations d'Originedes Vins et Eaux-de-Vie ("INAO") launched a court case in 1968. This ultimately led to an injunction from the Superior Court of Quebec in 1976 preventing the use of the term 'CANADIAN CHAMPAGNE' on sparkling wine not originating from the Champagne region of France. Despite all these complexities and long history the issue has been settled. Champagne is GI of French producers in a particular region. There is no logical, legal, economic or trade-related reason to protect only GIs of wines and spirits effectively and to leave the rest of the world's products with a second-class protection. The TRIPS Agreement allows the misuse of geographical indications- for example, "Roqueforttype cheese made in Australia" or "American Basmati rice" - on all products except for wines and spirits. The protection of geographical indications at the international level could be improved by extending the protection currently guaranteed only to wines and spirits to all other products. The European Union (EU) argues that the protection should be extended to other products. The process of arbitration under TRIPS is very complicated and difficult. Many countries resolved such issues through bilateral negotiations and bilateral or regional trade agreements. Bangladesh may consider negotiating the Jamdani dispute with India bilaterally and/or regionally. The writer is a Legal Economist. shah@banglachemcial.com