Geographical Indication (GI) is a sign used A on products that have a specific geographical origin and possess a reputation or quality that is due to that origin. The qualities, characteristics or reputation of the product should be essentially due to the place of origin. Since the qualities depend on the geographical place of production, there is a clear link between the product and its original place of production.
In the context of Nepal, there are no specific laws regarding GI registration.
However, there is the Patent, Design and Trademark Act, 1965 (PDTA) to protect industrial property, and it also protects collective trademarks, which can be used for GI protection.
In addition, although the PDTA, 1965 does not have specific provisions for GI and its protection, this does not stop Nepal from providing such protection as Nepal is a member of WTO/TRIPS, which has clearly mentioned about GI protection.
And as per section 9 of the Nepal Treaty Act, 1990, the provisions of a treaty in which Nepal is a party will be implemented in the same way as the law of Nepal.
Therefore, even though Nepal lacks a specific provision regarding GI protection, Nepal has a duty to recognise GI and confer the protection to the one seeking it.
There are some cases that have been decided here in Nepal in recognition of the GIs of other countries. In the case of Scotch Whiskey Association, UK versus Mohini Hygiene Products, a local company, the complainant, Scotch Whiskey Association, claimed that the defendant could not use the label ‘Scotch Whiskey’ on its liquor because Scotch is synonymous with Scotland and anything coming from Scotland.
Thus, the use of the label ‘Finest Rare Scotch Whiskey’ by the defendant on its product would mislead the consumer.
Also the word “Scotch” denotes the geographical indication of Scotland.
Therefore, the Department of Industry (DOI) decided in favour of the complainant, stating that only Scotch Whiskey Association had right over the word “Scotch’’. The defendant, however, has challenged the DOI’s decision, and the case is sub-judice in the Supreme Court.
In the context of GI, Nepal recently filed a case against India’s application for the sole GI status for its homegrown Basmati rice.
As per media reports, Nepal has countered the Indian claim on the GI of Basmati rice, stating that it is a local product of Nepal too and that no country could solely demand a GI for the crop. This action of India has also outraged Pakistan, which has filed a case against India’s claim.
There are many proactive steps that Nepal could have taken to protect its products denoting geographical indications because only reacting to actions taken by others might not help in the coming days. Nepal should, thus, have protected status for its Basmati rice here in Nepal, too.
As mentioned above, even though there is no specific provision to register such GIs here in Nepal, there is a provision of collective trademark, which would give the local producer/farmers certain protection by excluding unregistered third parties to use such a name on similar products. For example, the Leather Goods and Footwear Manufacturers’ Association of Nepal (LGFMAN) has registered a collective trademark for use on locally manufactured footwear.
Also, the Trade and Export Promotion Centre (TEPC) has registered collective trademarks of two major export products – ´Nepal Carpet´ and ´Everest Big Cardamom´. And the Ministry of Agricultural Development (MoAD) has provisioned a collective trademark for domestically produced orthodox tea, which is registered as ‘Nepal Tea, Quality from the Himalayas’. Also, Himalayan Specialty Nepal Coffee was registered at the European Union Intellectual Property Office (EUI- PO) in 2013 by the National Tea and Coffee Development Board.
A similar collective trademark for Basmati rice could have been registered through any association or board at the Department of Industry (DOI) to protect the rights of the local producers here in Nepal. This type of collective trademark registration at least in Nepal would have greatly helped and benefitted the local producers and farmers.
This would help Nepal to preserve its natural products and unique creation and also help increase the value of the products produced by the farmers.
As a country located at the foot of the Himalayas and a country rich in natural resources, Nepal’s agricultural and other products have a unique flavour or quality not found in any other country. For example, there is the Ilam tea, Mustang/ Jumla apples, yak cheese and Pashmina shawls, to name a few, with geographical indications.
These products have already found a niche in the international market.
However, the protection of these products and their production are still not seen.
Hence, the legislature should not delay to introduce a new comprehensive law, which is already in the process of being drafted, to replace the current Patent, Design and Trademark Act of 1965 as this act is not contemporary and is not in compliance with various international treaties that Nepal is a party of.
Therefore, in the recent case of Basmati rice too, with comprehensive laws, provision for GI protection would have helped provide protected status at least here in Nepal. It would not only protect the reputation of a product of Nepal but also help motivate and protect the labour of the farmers.
This kind of protection would help our local farmers earn more as no other mediators or big companies would be able to use such trademarks on a product other than the genuine farmers producing it. Also collective registration of the trademark ‘Basmati Rice’ could have made our position stronger internationally in this ongoing case.
Regmi is an associate at Apex Law Chamber
Nepal recently filed a case against India’s application for the sole GI status for its homegrown Basmati rice. As per media reports, Nepal has countered the Indian claim on the GI of Basmati rice, stating that it is a local product of Nepal too and that no country could solely demand a GI for the crop
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