Woolgathering

The famous 8220;Pashmina8221; wool has finally found a place in the register of geographical indications...

The famous 8220;Pashmina8221; wool has finally found a place in the register of geographical indications GIs kept by the Indian Geographical Indications Registry in Chennai, albeit with the word 8220;Kashmir8221; tacked on in front.nbsp; The Himalayan mountain goat, capra hiracus, which produces the soft, warm, luxurious wool, is indeed indigenous to high altitudes, but the ride to the registery was nevertheless quite a rough one for 8220;Kashmir Pashmina8221;. To start off, there was an objection from the Kashmir Handmade Pashmina Promotion Trust KHPPT, which objected to the inclusion of machine-made shawls and insisted on the inclusion of Pashmina yarn in the application filed by the Srinagar-based Craft Development Institute.nbsp; Then there was an objection from the Rawalpindi Chamber of Commerce and Industry RCCI that Pashmina shawls are produced in certain parts of Pakistan as well.nbsp; nbsp;

While the concerns of KHPPT were reportedly met, the objections raised by RCCI seem to have been rejected.nbsp; Whatever be the reasons for rejection, an interesting and untried legal issue has been raised, not only for India but also for many other parts of the world: how would you protect a GI shared by more than one nation.nbsp;GIs are a form of intellectual property owned by a community in a specific geographical region, which brand the product as possessing some quality, characteristic or reputation attributable essentially to being produced in that region.nbsp; nbsp;

To suggest that such a GI may be registered in a particular territory for the relevant regions is not an answer; GIs are supposed to affect public perception as to the item8217;s origin, quality and characteristics. Capra hiracus tends to be quite oblivious of political boundaries and roams and breeds cheerfully across the border, generously shedding wool on both sides in the process.nbsp; As a result, Pashmina wool is available in both countries, and is sold as such without any qualifications.nbsp; nbsp;

In other words, 8220;Pashmina8221;, as opposed to 8220;Kashmir Pashmina8221; is how the purchasing public worldwide naturally identifies the product. The qualification 8216;Kashmir8217; would, therefore, appear to be artificial in their eyes: for them, there is only one 8216;Pashmina8217;, a Pashmina sans any qualifications, be it 8216;Kashmiri8217;, 8216;Indian8217; or 8216;Pakistani8217;. Any attempts to qualify it could dilute the international goodwill and recognition enjoyed by 8216;Pashmina8217;, thereby rendering it a generic term to describe wool from capra hiracus bred anywhere in the world. The obvious corollary of this is that Australia may very well call wool produced from capra hiracus bred in Australia, 8216;Australian Pashmina8217; and the United States may clone capra hiracus and produce wool to call it 8216;American Pashmina8217; and so on. It would be difficult for the rights-holders to prevent this sort of unscrupulous third party usage; article 22 of the WTO Agreement on Trade Related Aspects of Intellectual Property Rights generally called the TRIPS Agreement, the guiding agreement on such issues, prevents such usage only if it can be proved that it does not 8220;mislead8221; the public. Defendants in such a case would have a convincing defence that the geographical prefix would be sufficient to distinguish the two products. nbsp;

Such usage would defeat the dual objectives of protection of GIs, namely, protecting the community8217;s rights to the name, and goodwill the name generates; both of which are inextricably linked to the product8217;s geography. It could also deny the consuming public of the right to know the origin of the product, which the law relating to GIs seeks to protect. nbsp;

While the TRIPS Agreement is silent about trans-border GIs, the European Council8217;s regulations technically for agricultural products and foodstuffs provide that such GIs must be applied for jointly by all the stakeholders. A member country is free to adopt TRIPS-plus measures.nbsp; Also, the Indian law on GIs does not prevent a joint application by one or more countries to register a GI shared by all.nbsp; nbsp;

Hence, ideally, any application for trans-border GIs must be filed jointly by all the stakeholders irrespective of geography.nbsp; Any unilateral efforts in protection, especially by way of adding geographical qualifiers, could seriously dilute the consumer goodwill and collective rights associated with the GI. Unfortunately, the political realities of the terrain where capra hiracus is bred are not in alignment with the economic imperatives of those who make a livelihood out of that animal8217;s famed wool. Were it so, that useful goat could have contributed to a much-needed precedent for joint protection of a trans-border GI. nbsp;

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The writer is a partner at a Gurgaon-based intellectual property law firm expressexpressindia.com