Jamdani Sari of Bangladesh, with indigenous craftsmanship and traditional weaving, has been a flagship Bangladeshi handicraft for a long period due to its special characteristics, quality and reputation. However, it is now well-known that India has registered Jamdani Sari as their own. This move by our neighboring country has resulted in deep concerns among Bangladeshi people, particularly to those who have been associated with the industry.
Bangladesh government, after much hue and cry, has enacted Geographical Indications of Goods (Registration and Protection) Act, 2013 to protect and promote our potential food products, agricultural products and handicrafts under the umbrella of geographical indications. It is worthwhile to mention that enacting the GI law is certainly a step forward to protect Bangladeshi GIs; however, Bangladesh government has to take some additional initiatives to preserve our national interests. In this writing, an attempt would be made to explain why Bangladesh should win the title of Jamdani under the geographical indication law.
Article 22.1 of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) explains geographical indications (GIs) as “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.” Therefore, TRIPS has put forwarded the basis of GI protection based on the quality and characteristics of goods with regard to their origin.
In this respect, historical exploration would show that Jamdani has its roots in different areas of Bengal that currently comprise of the Dhaka district. It is well documented in Banglapedia, a national encyclopedia of Bangladesh, that during Mughal rule, there were handlooms in almost all villages in Dhaka district. Dhaka, Sonargaon, Dhamrai, Titabari, Jangalbari and Bajitpur were famous places for making superior quality Jamdani.
Thus, Bangladesh has valid claims over Jamdani from a historical perspective. In addition, 8th Unesco Conference of the “Intergovernmental Committee for Safeguarding of the Intangible Cultural Heritage” held at Azerbaijan in 2013 has endorsed the historical link of Jamdani to Bangladesh. It has declared Jamdani handicraft as “sole tradition” and “intangible cultural heritage” of Bangladesh.
As far as quality and reputation are concerned, Bangladeshi Jamdani Sari is of higher quality and greater brand value than its Indian counterpart which originates from Uppada, a small village of Andhra Pradesh in India. The issues pertaining to quality and reputation of Bangladeshi Jamdani (also known as Dhakai Jamdani) are well-known not only in Bangladeshi markets but also in different Indian markets.
Article 22.2 and 22.3 of TRIPS has restricted the members from using GIs in any manner that may create confusion and mislead the public. As a signatory to the TRIPS Agreement, India is obliged not to adopt any policy that creates confusion, misleads the consumers and facilitates unfair competition.
It is further worthwhile to analyse whether India and Bangladesh can simultaneously protect Jamadni as homonymous GIs. Since enforcement of GI law like other intellectual property laws is territorial, therefore, both the countries should protect the Jamdani under same terms. However, the issue is not as simple as it sounds. Of course, Section 10 of Indian Geographical Indications of Goods (Registration and Protection) Act, 1999 provides scope for the registration and protection of homonymous GIs.
In contrast, Section 7 of Bangladesh Geographical Indications of Goods (Registration and Protection) Act, 2013 incorporates a similar provision. However, it is to be noted that the laws of both countries permit co-existence of homonymous GIs unless they potentially create confusion in the market and mislead the consumers.
From domestic to international context, European Union is the leading GI market not only for EU members but also for other GI producing countries of the world. EU Regulation 1151 of 2012 has prescribed the rules and procedures to manage homonymous GIs. This Regulation stipulates that “a homonymous name which misleads the consumers into believing that products come from another territory shall not be registered even if the name is accurate as far as the actual territory, region or place of origin of the products in question is concerned.”
Therefore, proposition of homonymous protection of Jamdani by both States is not tenable under domestic and international geographical indication regime. Harnessing Jamdani as a homonymous GI has a great risk of producing confusion among the consumers and may mislead them.
The position of Bangladesh may be substantiated even by the precedents of Indian Judiciary. For instance, In Scotch Whisky Association vs Golden Bottling Limited (2006 (32) PTC 656 Del), Scotch whisky had a GI tag and contended that the defendants were infringing their GI tag by propagating its whisky as “Red Scot.” Delhi High Court held that the defendant’s tag is not genuine; therefore, they are responsible for infringements and misleading the consumers.
Moreover, the famous Indian Basmati Rice case should be a useful reference to the current Jamdani dispute. In late 1997, an American company, RiceTec Inc was granted a patent by the US patent office to call the aromatic rice grown outside India as “Basmati.” India has been protecting Basmati rice for a long time as plant varieties under the legal mechanisms of Indian Seed Act, 1966.
India objected actions of the RiceTec on the ground of, among other things, non disclosure of true origin and creating misconception to buyers. The same objection may also be raised by Bangladeshi producers with regard to the ongoing Jamdani dispute.
In short, Bangladesh is a genuine claimant of Jamdani as it is our national pride, a part of our longstanding tradition and cultural expression. Under the domestic and international geographical indications regime, we have sufficient grounds to substantiate our position against India. First and foremost, Jamdani should be registered under our domestic GI law without further delay.
Bangladesh, then, may apply under section 27 of Indian GI Law to the Registrar of Indian jurisdiction for cancellation of the registration of Jamdani. If the legal battle in India does not produce any satisfactory outcome, Bangladesh will have the recourse to the WTO dispute settlement body (DSB) for adjudication of the dispute.
Mohammad Ataul Karim is Senior Lecturer, Faculty of Law, Green University, Bangladesh.