Originally posted in The Business Standard on 24 February 2024
It appears that the Government of Bangladesh has finally woken up to the problem. But is it taking the right course of action? We are not sure about that. Rather, it often seems that the government is showing a knee-jerk and uninformed reaction to the issue, which looks more like a public relations exercise.
On 1 February 2024, the Ministry of Culture of India officially informed on their Facebook page that the West Bengal State Handloom Weavers Co-Operative Society of India has obtained the Geographical Indications (GI) for the Tangail Saree. A large cross-section of Bangladeshi citizens expressed profound dismay and strongly criticised this contentious act by India. The Bangladesh government also reacted thereafter.
On 10 February 2024, the authors of this article presented at the Centre for Policy Dialogue (CPD) a detailed analysis of the issue titled ‘On Tangail Saree-GI by India: What Happened and What Can be Done?’. Later, the Prime Minister provided guidance, and the concerned government authorities announced different measures to secure the GI for the Tangail Saree on behalf of Bangladesh.
However, a closer look at the evolving situation indicates that confusion still remains regarding whether the country is following the right and effective course of action given the task at hand.
The essence of the issue
India applied for the GI of the Tangail Saree as far back as 8 September 2020. Following a period of four years, marked by repeated scrutiny and amendments, the Intellectual Property India Patents Design Trademark Geographical Indications, under the Ministry of Commerce and Industry, Government of India, awarded the GI certificate to the West Bengal State Handloom Weavers Co-Operative Society Limited for the “Tangail Saree of Bengal”.
During these four years, Bangladesh remained in the dark and/or refrained from taking any action in this regard. On 31 August 2023, a copy of the GI Journal was published by Intellectual Property India. This journal was up on Intellectual Property India’s website for five months, from August 2023 to January 2024, before the GI was granted, inviting any interested party to raise objections.
Regrettably, the Department of Patents, Designs and Trademarks (DPDT), Ministry of Industries, Government of Bangladesh and Bangladesh High Commission in India (Delhi and Kolkata) failed to take note of it and lodge its disagreement during the allowed three-month period (September- November 2023). The Indian side also did not alert Bangladesh, which is the usual thing to do in case of shared GI.
Coming to know about the Indian action, the agony and anguish of the people of Bangladesh were expressed through public outrage, including those of the weavers and the local people of Tangail. An order has been passed by the High Court to compile all the registered GI products of Bangladesh by 19 March 2024.
Amidst the visible discontent among people, the Ministry of Industries called an urgent meeting on 5 February 2024, to discuss the processing of the GI application for Tangail Saree. The district administration of Tangail submitted an application for the GI of Tangail Saree to the DPDT on 6 February 2024. The application was submitted, reportedly, along with the documented evidence and sample design.
Subsequently, the Prime Minister took note of the issue during a cabinet meeting held on 11 February 2024, and all relevant authorities were asked to undertake necessary measures for the GI registration of the nation’s relevant products. The Cabinet Secretary, briefing the media in this regard, relayed the Prime Minister’s directive that in the event of any conflictual situation concerning India’s GI of the Tangail Saree, Bangladesh should promptly present its case to an appropriate international organisation, possibly implying to the World Intellectual Property Organization (WIPO), for a solution.
The right way forward
It appears that the Government of Bangladesh has finally woken up to the problem. But is it taking the right course of action? We are not sure about that. Rather, it often seems that the government is showing a knee-jerk and uninformed reaction to the issue, which looks more like a public relations exercise. If the necessary steps are not taken with due diligence under the concerned jurisprudence and regulatory regime, all our efforts to establish our rightful ownership over Tangail Saree will turn out to be futile.
In the following paragraph, we lay out the options available for Bangladesh in this regard.
Actions to be undertaken in Bangladesh: The GI registration of Tangail Saree in Bangladesh has to be completed fully and faithfully following the prescribed procedure under the Geographical Indication of Goods (Registration and Protection) Act, 2013 of Bangladesh.
In response to India’s GI registration of the Tangail Saree, the DPDT hastily proceeded to “register” the GI for the Tangail Saree. Filing for a GI application involves several meticulous steps. The district administration of Tangail seems to have managed to complete the application within a single day. We would like to assume that this swift action was possible due to prior processing.
On 7 February 2024, the DPDT “recognised” the Tangail Saree as a GI product of Bangladesh. This announcement came through Bangladesh Sangbad Sangstha (BSS), the national news agency of Bangladesh. The use of the term “recognised” is quite misleading. The DPDT has merely approved the application and published it in the GI journal on February 9 2024, not granted the GI certificate for the Tangail Saree. It’s worth noting that several media outlets reported that the Prime Minister received the “GI certificate” for the Tangail Saree on 11 February 2024.
In fact, the DPDT is yet to confirm the registration of the GI for Tangail Saree under the concerned legislation of Bangladesh. A review of the DPDT’s website will show that Tangail Saree is still not enlisted as a GI product of Bangladesh.
As per Section 12 of Chapter IV, the Geographical Indication of Goods (Registration and Protection) Act, 2013 of Bangladesh, if the Registrar deems that a GI good registration application fulfils all prerequisites, the application will be advertised. Section 13 of Chapter IV mandates that any interested individual, authority, or institution can contest the registration within two months of the publication of the notification. This implies that DPDT will be able to register the concerned product as GI only after 9 April 2024.
Legal Recourse in India: We need to bear in mind that the registration of Tangail Saree GI in Bangladesh would not stop India from using the GI of Tangail Saree and capitalising on it commercially. Certain Ministers in our country have created further confusion by stating that Indian authority has removed Facebook and Twitter posts as though it has cancelled its contested GI measure. This is farthest from the truth as the Intellectual Property India website still indicates a listing of “Tangail Saree of Bengal.”
To protect the local weavers from unfair competition, the government needs to legally challenge the concerned GI of India. As the Sui Generis system of GI is a measure falling in the domain of national jurisprudence, Bangladesh has to go to the relevant Indian Court to secure its right to Tangail Saree. The official website of Intellectual Property India previously advised individuals to lodge an appeal with the Intellectual Property Appellate Board (IPAB) within a three-month period if they were aggrieved by an order or decision. This means Bangladesh has to file its contention by 2 April 2024.
However, the IPAB of India was dissolved in 2021. Subsequently, two Indian High Courts, namely the Delhi High Court and the Madras High Court, have instituted their own branch of Intellectual Property.
In accordance with the prevailing legal procedures in India, an appeal can be lodged under the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance 2021 of India to the Registrar of Geographical Indications and at the two GI branches of the High Court of India in Delhi and Madras. This has to be done within three months from the promulgation of the contested act.
Upon receipt of an application in the prescribed format from any aggrieved party, the Registrar or the High Court has the authority to issue an order to cancel or vary the registration of a GI. This order can be issued on the basis of ‘any contravention or failure’ to observe a condition entered on the register in relation to the GI.
Bangladesh has a strong case as the Indian GI refers to ‘Tangail Saree’, which is a specific geographic location in Bangladesh. The argument concerning the migration of skills and knowledge followed by the Indian Subcontinent partition in 1947 (as mentioned in the Indian GI application) is neither fully factual nor compelling, as GIs must be linked to products produced in a specific territory.
Resorting to the International Bodies: It needs to be kept in mind that no means is available to Bangladesh for the resolution of the Tangail Saree Contestation under WIPO as neither Bangladesh nor India is a signatory to the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (1958). The Lisbon Treaty is the only international covenant providing international protection of GIs. Indeed Bangladesh should rush to become a member of the Lisbon Treaty at the earliest. Furthermore, WIPO does not have an institutionalised dispute settlement system for member states, as is the case under the WTO.
Indeed, if all bilateral consultations and legal recourse through the Indian court system do not give result, the case could be taken to the WTO dispute settlement mechanism (which currently remains dysfunctional because of the absence of an adequate number of judges) under a possible Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement violation. Article 22 of the TRIPS Agreement can potentially be the basis for litigation as the GI Title’ Tangail Saree of Bengal” falsely indicates the true place of origin of the product.
WIPO could, of course, provide legislative advice, but as this is a dispute amongst member states and all IP related matters remain territorial, it will not be able to do much in this instance.
The authors are of the view that given the complex multidisciplinary nature of the issues at hand, the Ministry of Industries will be well advised to set up a Task Team to support it suitably as the government proceeds to resolve the matter concerning the GI accreditation of Tangail Saree by India.
Debapriya Bhattacharya is a Distinguished Fellow & Naima Jahan Trisha is a Programme Associate at the Centre for Policy Dialogue (CPD).