You can see them being sold everywhere: in the open-air stalls of Dilli Haat in the capital; in the crowded, winding lanes of Chinatown in Singapore; in the fashionable streets by the Hotel de Ville in Paris… Pashmina shawls, both real and fake, have become a global fashion statement, and can be found draped around every neck this winter. But where exactly do they originate?
In a replay of the Super Basmati yarn, troubles between India and Pakistan have been raging over the registration of the Geographical Indication (GI) tag for Kashmir-made Pashmina wool. HT reports that while Pakistan is “open to a joint GI tag”, India has said that this would be possible only in Pakistani Pashmina is proven to be of the same quality as the Indian variety.
The dispute originated when the Srinagar-based Craft Development Institute filed an application with the Geographical Indications Registry in Chennai to protect Pashmina weavers from others claiming to be authentic (See this earlier SpicyIP post). The Rawalpindi Chamber of Commerce and Industry immediately challenged this on grounds that Pashmina shawls are also woven in Pakistan’s Gilgit Baltistan region and that India could not solely claim the GI, Mint reported a few months ago.
Pashmina is not the sole case in point of a GI being disputed by different countries; Basmati has received more media attention. But there are several obvious examples that emerge, particularly in the arts and crafts, where antecedents of origin lie along the border lines in the sub-continent: Kutchi-work in Gujarat and Kantha embroidery, Madhubani paintings in Bihar…
While all of these have not been registered as GIs, there remains the nagging question: how are these entities to be treated? Neither TRIPS nor the national legislation provides for the joint registration of GIs. At best, such an arrangement will have to be arrived at through bilateral or plurilateral agreements, as the case may be.
In disputes with Pakistan over GIs, the problem is twofold, as Spicy IP’s Prashant Reddy reported earlier: the political state of affairs in the country has beset legislators with more immediate concerns; and Pakistan is yet to have a GI law in place.
One suggested solution is that of countries simultaneously registering homonymous GIs, similar to the provision under section 3, Art 22.3 of TRIPs (‘homonyms’ are names which consist of, or contain, the same identifier for different geographical places):
In the case of homonymous geographical indications for wines, protection shall be accorded to each indication, subject to the provisions of paragraph 4 of Article 22. Each Member shall determine the practical conditions under which the homonymous indications in question will be differentiated from each other, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not misled.
In Beijing earlier this year, at the International Symposium on GIs, the International Trademark Association (INTA) recommended a multilateral registry for GIs along the lines of the Patent Cooperation Treaty and the Madrid System for the International Registration of Marks.
The conflict resolution mechanism recommended by INTA is in-built in the principles of territoriality, priority and exclusivity that the PCT and the Madrid system espouse. The paper cites the example of Veracruz coffee beans, and Budweiser beer, illustrating that national offices and courts were best positioned to undertake an IPR priority examination. This model assumes that the question of priority of an IPR registration will differ from one country to another and prior IPR will not be registered in all countries where protection of the conflicting geographical indication is sought.
Lack of precedent makes it hard to evaluate whether the INTA model is workable; or if a joint-homonymous GI is feasible. There is little consensus between WTO member countries on GIs such as these; and clearly, there is an urgent need to evolve and implement a working model before the GI protection system loses legitimacy in the wake of such issues.