TRIPS compatibility of Bangladeshi legal regime on geographical indications and its ramifications: A comparative review

• Date: 01 November 2018
• Published date: 01 November 2018
• DOI: http://doi.org/10.1111/jwip.12110
• Author: Mohammad Ataul Karim

DOI: 10.1111/jwip.12110

ORIGINAL ARTICLE

TRIPS compatibility of Bangladeshi legal regime

on geographical indications and its ramifications:

A comparative review

Mohammad Ataul Karim

Department of Law, East West University,

Dhaka, Bangladesh

Correspondence

Mohammad Ataul Karim, Department of

Law, East West University, Dhaka,

Bangladesh.

Email: karimataul24@gmail.com;

karimataul@ewubd.edu

This paper, as the title suggests, explores TRIPS compatibility

of Bangladeshi legal regime on geographical indications along

with its challenges and potential impacts. The global

transformation of IPRs regime, as significantly developed by

TRIPS Agreement, was and still is not a pleasant journey for

many countries in general and for the least develo ped

countries (LDCs) in particular. Arguably, the developing nations

and LDCs were not able to negotiate their interests adequately

in the drafting process of TRIPS. However, TRIPS is a global

reality now and WTO members are inherently under an

obligation to replicate TRIPS principles and guidelines in their

domestic legal regimes. Bangladesh, as a member of WTO, has

started to redesign its legal frameworks to be among the TRIPS

compliant countries. In this process of transformation, sui

generis Legislation along with a Rule for the protection of

geographical indications has been enacted by Bangladesh. This

paper sheds light on the two key issues—TRIPS compatibility of

Bangladeshi GI legal regime and unexplored challenges of

geographical indications of Bangladesh. Placing the TRIPS as

the guiding document, this paper compares the Geographical

Indication Law of Bangladesh and provides some critical

observations in appropriate cases.

KEYWORDS

geographical indications, geographical indications of Bangladesh,

TRIPS compatibility

© 2018 The Authors. The Journal of World Intellectual Property © 2018 John Wiley & Sons Ltd

J World Intellect Prop. 2018;21:421–436. wileyonlinelibrary.com/journal/jwip

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INTRODUCTION

Geographical Indications ( GIs) refer to signs or symbols to desi gnate the products or goods wit h distinct

characteristics or qualiti es which are exclusively attrib utable to particular places or reg ions. Geographical

indication as a separate categ ory of IPRs has been included in TRIPS although it was highly de bated by between

“old world”and “new world”or North and South. Argu ably, the developing countries could not suf ficiently embark

their propositions in standard-settingof IPRs during the TRIPS negotiation periods (Drahos, 2002). However, WTO

members had no other options bu t to accept the full package of ob ligation when TRIPS came int o force.

Concomitantly, many develop ing countries and least developed countries (LDCs) adopted gl obal IPRs standards in

their municipal laws either to cope with their trade par tners or to reduce immense am ount of pressures by the

developed countries (Forsy th, 2016). Thus, TRIPS complaint legal regime i s no more a rhetoric but a global reality

(Drahos, 2001). TRIPS enjoins a minimum standard of protection for IPRs with some built-in flexibilities that

member States are required to i mplement in their domestic spheres. Like other members of WTO, Bangladesh is

also under obligation to bri ng its intellectual property laws as per the legal fr ameworks of TRIPS. Bangladesh has

upgraded its Pre-TRIPS legi slation and simultaneously has been enacti ng new Laws at Post-TRIPs era.

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In so doing,

Bangladesh has designed its Ge ographical Indications of Goods (Registration and Prot ection) Act 2013 (Act No.

LIV of 2013) and framed the Geographical Indications of Goods (Registration and Protection) Rules 2015. What

were the backgrounds and as pirations for Bangladesh to enact a sui generis system of GI protection ? Had

Bangladesh been inspired by th e initiatives of other Asian countries which adopted GI p rotection system for two

main reasons, they understoo d the trade implications of GI on one hand and they ful filled TRIPS obligations on the

other (Heath, 2017, p. 186 et sequ entes). Legal transplantation is one of thevia ble ways to replicate the better legal

provisions of other jurisdict ions. However, how far GI policy of one country is a good fit for another country i sa

real and pragmatic question to be explored (Frankel, 2017, p. 149). Again, TRIPS compatibility of Bangladeshi GI

legal regime is a significant i ssue at hand because very soon Ba ngladesh is going to be upgraded from LDC

category. It is also critica lly important for Banglad esh to navigate the unexplor ed challenges in harnessin g its

geographical indication s. Would only following the TR IPS guidelines without due consideration of interpl ay

between socio-economic an d cultural needs of Banglade sh result expected outco mes? At these backdrops, th is

paper explores the TRIPS co mpatibility of Banglad esh Geographical Indicat ion Law by adopting a compa rative

analysis and review of the diff erent provisions as enshrined in both sets of legal docu ments. It sheds light on the

geographical indication pr otection system of Bang ladesh to frame the paper an d also ventilates the unexp lored

challenges and potential impacts of Bangladeshi GI s on economic and social de velopment of Bangladesh .

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A BRIEF LOOK AT GEOGRAPHICAL INDICATIONS LAW OF

BANGLADESH

The backgrounds of enacting c urrent GI legal framework of Ban gladesh would be useful to und erstand the

rationales of adopting existing law an d overall GI system of Bangladesh. The issu e of protection of handicrafts,

foodstuffs and agricultur al products of Bangladesh—the potential GI pr oducts of Bangladesh has long been either

ignored or not given due attent ion. Until India, a neighbor of B angladesh, when registere d some GIs with similar

names of Bangladeshi famous h andicraft and foodstuffs,

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the policy makers of Bangl adesh paid a little attention to

this emerging area of signifi cance for Bangladesh. As a res ult of the Indian move, stak eholders from all corners,

both emotionally and logically , pushed the agenda of crafting domestic GI le gal frameworks so the potential GI

products of Bangladesh can be protec ted. It attracted great public se ntiments because of the emotiona l and

cultural attachments of B angladeshi communities wi th the similar products th at were registered by the I ndian

authority. At this backdrop , Bangladesh went for a sui generis system like mo st of the Asian countries and enacted

its Geographical Indicati ons of Goods (Registration an d Protection) Act, 2013 (Act N o. LIV of 2013) and

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KARIM