Monopolising geographical indications

From InpaperMagazine

From the very early days, we have a law for protection of geographical indications. But unless the international community starts to talk about it, some people would not accept any concept that they believe to be new.

This is particularly true of governments, whether federal, provincial, elected or imposed.

This story should begin thousands of years ago when the first basmati rice crop was ever farmed in the Indus valley. It could have started a half a century ago when a Californian experiment (citrus variety) was brought to Punjab and found a natural environment so suited to its growth that Kinnow today is a Pakistani specialty rather than being an American one, where it was originally born.

But this story ‘started ‘ only now when in the last decade of last millennium, the WTO initiative on the trade-related aspects of intellectual property were agreed upon by a majority of the member countries and Pakistan signed an international covenant vowing to enforce laws to protect the geographical indications.

Subsequently, in 2001 Trade Marks Act, provisions were made to recognise as well as register this all-important aspect of IP law, though a dedicated Geographical Indications (GI) law was not enacted.

There are a couple of lacunas in this law, even though on the surface, it seems quite good. First of all, it treats the GIs in the same category as trademarks. Now, if one goes by the way our law treats them, trademarks are signs. GIs, on the other hand, are indications.

The Act which now recognises the GIs does not define the person who is entitled to use these GIs. All it does is to allow a business to register its GI as a Collective Mark or at best, a Certification Mark. It, however, does not entitle the bearer of such mark to prohibit the use of the marks or indications in accordance with honest practices in industrial or commercial matters, in particular, by a person who may be entitled to use a geographical name.

The biggest issue that may arise is monopolising of such marks by various associations representing certain geographical units.

A group of Multan growers of mango claim to represent the entire mango trade from that region and are out to get the GI protection from the trademarks registry. If they get that protection from the trademarks registry, they can easily monopolise the mango trade at least from Multan. The government is silent on such matters and any possible dispute between private parties may become quite a problem (considering our history of dispute resolution that we have in this country) once the claim of this private group of growers is accepted.

This would not be anything new; it has been a normal practice to have such conflicts between farmers, traders, middlemen, wholesalers, millers, processors, suppliers of various sorts, and exporters on the basis of their being in the trade of the same or similar commodities. And then there can be several associations representing the same interest group too. How can one recognise one group to be the rightful claimant of a GI and not the other, if technically, both belong to the same trade from the same area? The trademarks registrar would be put to test every now and then on such situations while the law remains pretty much silent.

Going a step further in this particular direction, a number of such associations have sprung up, and for reasons best known to them, have opted to register themselves in the provincial metropolis rather than in the geographical location of their origin.

Or perhaps that is where their origin is.

Interestingly, at least four of them have the same address of Garden Town in Lahore, even when their locations mentioned in their geographical indications existed elsewhere. These associations—a Heritage Association, a Livestock Farmers and Breeders Association, Sharaqpur Guava Growers Association, and Basmati Growers Association—are all private groups and there is nothing official about them. Still they claim for the official status of owning the GI for their particular goods, each having applied under the section 28(1) of the Trademarks Ordinance of 2001.

With very similar designs and printing material, these four ‘associations’ have also come up with literature explaining why these groups needed GIs protection. What they failed to point out is that these may not be true representatives of the actual groups and in any case, may create monopolies that would not recognise any genuine grower, for example, from those areas of he is not recognised by these bodies.

Again, the law does not say much here, leaving a very difficult task of debating all this with the trademarks registrar, and thus making a federal officer- in -charge of confronting a provincial department’s four simultaneous mistakes.

The results may be far more devastating than just the inter-departmental issues. What if those basmati growers later decide to challenge all others from elsewhere even in Pakistan on the basis of their registration? India has challenged such a move by Pakistani basmati lobby in the Sindh High Court. In absence of a clear-cut law on GI, it is now up to the judges to clear these ambiguities. Remember, in case of products such as kinnow, the geographical relation to this citrus with Sargodha dates only back to the 1950s. That is not what may count as any historic tie. Don’t we have traditions that go back centuries? Why are we quibbling over petty issues when larger national interest could be protected through a better GI law that supports our heritage?

A simple solution would be to look at practices in other countries where the conditions are quite identical to ours. India, for example, has established multi-interest boards for each of such products. To protect the interests of Darjeeling tea growers, an Indian Tea Board was established which apart from the task at hand, also undertook the responsibility of developing markets for other varieties of tea. But the prime task for this board remains the protection of the rights of tea growers that fall under its geographical indications.

Such boards usually comprise all stakeholders in an industry and in case of products like Multan’s mangoes, Sharqpur’s guavas, or Sargodha’s kinnows, should have members coming from not only the growers community but also the exporters, traders, middlemen, wholesalers, and above all, the government representatives to ensure that a level playing field is maintained. Such a board could be granted the GI rights since it would represent all stakeholders including the state and its citizens. This board should have the authority to verify the Certification Mark for products.

The legislators have not given this issue a serious thought, mostly following the international market trends without making an effort understand why GI is important and how it should be handled. Such rights can be a double edged sword, and unless the local producers are protected, they can be quite harmful in the hands of vested interests.