Lost Jamdani and prospect of regaining

ownership
M S Siddiqui
Publish Date : 2014-06-17, Publish Time : 00:00, View Count: 9 9 hours ago
http://www.observerbd.com/details.php?id=26066

The conscious citizen of the country are eagerly waiting to see Jamdani registered under our
national Geographical Indication Act (GI act) and get the ownership right on Jamdani with a oblique reference to
registration of Jamdani as Upadday Jamdani by India under their GI Act. There are enough historical evidences to
prove the ownership of Jamdani but Bangladesh is lagging behind in documentation and legal position so far due to
ignorance and carelessness. Legally we must prove the origin of Jamdani is in Bangladesh.
Appellation of origin was one of the earliest forms of GI recognition and was first mentioned nearly a century ago in
Paris Convention for protection of Industrial property March 20, 1883. Again there was another agreement in Lisbon
for the Protection of Appellations of Origin and their international registration of October 31, 1958.
Article 10 of the Paris Convention provides for the prohibition from, or seizure on, importation of all goods that bear
a false indication of the source of the goods or the identity of the producer, manufacturer or merchant - this
protection being predicated on national protection for such indications. Based on Article 10 of the Paris Convention,
the Madrid Agreement, 1891 for the Repression of False or Deceptive Indications of Source on Goods sets out the
cases and manner in which seizure may be requested and effected and prohibits use of all indications that deceive
the public as to the source of the goods.
The Lisbon System was the first to agree formally to use the term appellation of origin as a form of GI by using one
single registration procedure, effective among the signatories of the agreement. Appellation of origin is the
geographical denomination that serves to designate a product originating therein in any locality, region or country.
The quality or characteristics of which are due exclusively or essentially to the geographical environment, including
natural and human factors are considered to decide on origin under geographical indication.
Madrid Agreement facilitates the international protection of appellations of origin by offering the possibility of
obtaining protection in the Contracting Parties through a single registration.
The Madrid System provides for a central international registration of marks. It extends protection on a multination
basis, so that rather than filing separate registrations in individual countries of interest, owners of marks can simply
file one application directly with their national trademark or IP office and designate the countries of interest,
provided that the country is a member of the System.
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization
(WTO) internationalized the protection of GIs in Annex 1C of the Marrakesh Agreement Establishing the World
Trade Organization, signed in Marrakesh, Morocco on 15 April 1994 by promoting a standard definition of GIs and
prescribing certain minimum standards by which they must be legally protected throughout WTO Member States.
The TRIPS Agreement does not specify any formalities as a condition for GI protection. Accordingly, countries
approach this issue differently. In some jurisdictions, no formal procedure is required to acquire the right to use a
GI, and the right to prevent false or misleading uses of that GI can be exercised by any interested party. In other
jurisdictions, GIs must be registered in order to be protected. Usually once the GI is registered, all bona fide
producers may use the GI in relation to the product in question provided certain standards are met. Gls are offshoots
of indications of source and appellations of origin, which were first accorded international recognition in the Paris
Convention.
Over the years, several international agreements have tried to establish a common international registry as a one-stop
method of recognizing and protecting GIs. The Lisbon Agreement is the most widely accepted international accord
on GIs even though it has only a modest level of participation. Many countries agree there would be benefits to
having a common international registration system.
A majority of WTO Members reportedly around 100 wish to extend the higher level of protection provided for by
Article 23 of the TRIPS Agreement beyond for all GI products. They also wish to establish an international register,
characterized by voluntary notifications of GIs, to help establish the rights of GI owners in foreign jurisdictions. If
such a multilateral Register were to be approved, WTO Members would have to provide that their domestic
authorities consult and take into account the Register when making decisions regarding registration of GIs or
trademarks in accordance with Members' own domestic regulations.
The Lisbon Agreement for the Protection of appellations of origin and their International Registration was
established in 1958. It became operational in 1966, was revised in 1967 at Stockholm, and the Regulations under the
Agreement were last amended in 2002. The Lisbon System, established under the Agreement, is the counterpart of
Madrid and also administered by WIPO. It is used to help recognize and protect appellations of origin in countries
other than their country of origin.
However, little progress had been made to date. In the WTO forum, a coalition of countries led by the EU has been a
major proponent of expanding the protection scope of GIs while the United States and another coalition of countries
prefer protection to be limited to the current categories.
Some countries frequently pursue regional or bilateral trade agreement to facilitate protection or preferential market
access for their products. Specific IP protection and GIs are now common components of many agreements. For
example, the North American Free Trade Agreement (NAFTA) tri-laterally protects the GI products among
contracting countries. Bangladesh is member of a number of regional agreement but there is no such protection of
GIs.
In some cases, countries draw up lists of specific GIs for which regional or bilateral partners agree to provide full
legal protection. These agreements usually require reciprocity in protection, meaning that developing countries must
put systems in place to protect foreign GIs. This is one viable approach for developing countries that may want to
secure foreign recognition of their GIs.
GIs are also protected through unfair competition laws, consumer protection laws and laws protecting trade names
or marks from passing off and other false and misleading trade practices. Bangladesh has a competition act without
any competition commission and effective step to implement it in the country.
Since there is no single or common mechanism to protect geographical indications, various approaches have evolved
in different countries. These typically include combinations of laws, jurisprudence, regulations and administrative
acts such as formal registration. Bangladesh has enacted GI act in 2012 after much persuasion but working on rule
under act till 2012. We have long way to GI rule, registration of Jamdani under GI act and get the recognition of
India that Jamdani is our GI product.
The TRIPS Agreement only provides for modest effective protection for non-wine and spirit products. It therefore
serves primarily as a complaint mechanism for countries when other WTO Member countries are not complying
with their multilateral obligations, i.e. are not enforcing their regulations or not putting in place the legislation and
regulations to protect GIs.
Unfortunately, Bangladesh is not yet contracting party to both Madrid agreement and Lisbon agreement and also not
willing member to join other WTO members to protect GIs joining a single register. Bangladesh is member of Paris
convention but there is no logical reason why it is not party to Madrid and Lisbon agreement.
It is also possible to have a GI recognized in some foreign countries using those foreign countries' own domestic
registration procedures. Bangladesh may now register Jamdai as GI and approach Indian authority for registration
under their GI act. The real legal battle will start with the application for such registration.
We can fight for Jamdani with weak legal position since we are not party to Madrid Agreement and Lisbon
agreement.

The writer is a legal economist