Requirement of Geographical Indication Law

When making an intellectual property law that can be accepted even at the international level, it is desirable to include geographical indicators that will introduce Nepal to the world community.

kartik 20, 2081

Laxmi Sapkota

Requirement of Geographical Indication Law

We use Google Cloud Translation Services. Google requires we provide the following disclaimer relating to use of this service:

This service may contain translations powered by Google. Google disclaims all warranties related to the translations, expressed or implied, including any warranties of accuracy, reliability, and any implied warranties of merchantability, fitness for a particular purpose, and noninfringement.

Inventions, arts, skills, material or linguistic creations created using intellectual property are intellectual property. The Constitution of Nepal includes intellectual property within the definition of property. The constitution guarantees intellectual property as a fundamental right. The Civil Code 2074 considers things that are movable and immovable, physical or immaterial, tangible or intangible in any state, as property.

Copyright and related rights are protected by the Copyright Act 2059 and patents, designs and trademarks within industrial rights are protected by the Patents, Designs and Trademarks Act 2022. Collective Marks are protected under the Collective Marks Directive 2072. The National Intellectual Property Policy 2073 has broadened the scope of intellectual property by adding copyright and related rights, patents, designs and trademarks and eight more subjects.

Intellectual property includes copyrights, patents, designs and trademarks including geographical indications, plant species protection, trade secrets, layout and design of integrated circuits, traditional cultural expressions and intangible cultural heritage, biological diversity and genetic resources. A geographical indication is an agricultural product or natural product manufactured or produced in any part of the country. Geographical indication 'goods' means agricultural products or natural products or any article or art of handicraft or industry and includes food. "Sign" means any word, combination of words or sign or map or any combination of words, sign, map.

Nepal needs a law to protect the intellectual property rights of natural or man-made geographical indications. Nepal has many geographical indicators. Such items include juju dhow of Bhaktapur, oil of Khokna, tea of ​​Elam, Dhaka of Palpa and many other plants such as Argeli and so on. There is an international legal arrangement for the legal protection of these items and Nepal has become a party to such treaties.

For example, Nepal became a member of the World Intellectual Property Organization in 1997. Similarly, Nepal has become a member of the Paris Convention on Protection of Industrial Property in 2001. Became a party to the Agreement on Trade in Intellectual Property in 2004. For the implementation of the provisions of such treaty agreements at the national level, the relevant national laws are indispensable. Cases related to geographical indications have entered the courts under international law on intellectual property. Nepal has come to a situation where we have to raise our voices against the registration of our geographical indicators by others as their own. For example, the National Agricultural Research Council has claimed in the European Union (EU) that Nepal will also have the right to a geographical indication on basmati rice. 

The issue of how to legislate on geographical indications is intense. At the international level, confusion has been created because the United States and the European Union do not agree on the method of protection of geographical indications. The United States is of the opinion that it should be protected under the collective mark, while the European Union is of the opinion that a country should make a law according to its own pattern of geographical indications. Bangladesh, India, Pakistan and Sri Lanka have protected such items by creating their own geographical indication laws. The main difference between a national geographical indication law and a collective law is that protection by geographical indication law benefits the entire community. This right of the community is not transferable to others and remains owned by the community.

Since then, Nepal is currently working under the collective mark. According to the guidelines, when protecting in this way, the intellectual property is registered in the name of some people and the monopoly of the intellectual property remains with them and they can transfer it to anyone. The entire community ends up being deprived of its benefits. In the past 13 years, Nepal has been able to protect only seven items under the guidelines. The Patents, Designs and Trademarks Act 2022, which is the main national law, does not recognize collective marks. As long as the collective mark has to be protected according to some rules regarding trademarks, it is necessary to guess whether the directive relates it to the national law. 

The declaration of a socialist-oriented nation in Nepal's constitution demands that the benefits of international trade should not be limited to individuals and should benefit the wider community. Therefore, it is imperative that the issue of intellectual property protection be used in the larger national interest. Therefore, when making a law on the protection of geographical indication intellectual property, a law should be made that benefits the community.

There are various geographical indicators in Nepal. Nepali paper 'Argeli' is also one of them. Japan uses Nepalese argelee bark as a raw material to make its country's yen notes. Such Japanese paper made from Argeli is exported to European countries, especially the UK. In Nepal, the raw material of Nepali paper is found in Argeli, Lokta because of geographical and environmental geography of Taplejung, Panchthar, Ilam, Dhankuta, Tehrathum, Bhojpur, Sankhuwasabha to Dolakha. The National Trade Integration Strategy 2080 has identified Argeli's Lokta as an exportable commodity. Nepal Trade Policy 2072 has kept it as a potential trade item. Man Paudel has mentioned that Lokta paper is a possible object of geographical indication. 

According to a report prepared by the International Trade Center, Nepal was the largest exporter of lokta in 2009, earning $7.2 million in foreign exchange from its sale. Nepal's Foreign Trade Statistics of 2079/80 published by the Government of Nepal shows that Nepal has exported 322,959 kilos of lokta. Good paper can be produced in the country through the argel bark which is being exported as a raw material. Also, since Nepal is a natural vegetation, it is necessary for Nepal to retain its intellectual property ownership. 

Argeli is a Bhutan found at an altitude of 1,500 to 3,000 meters. In English, it is known as Nepali 'Paperbush'. The production of Nepali paper from the bark of Argelii, which has the scientific name of 'Edgeworthia gardneri', started in Eastern Nepal before the Rana period. The Nepali paper produced from the eastern part of the country used to come to Kathmandu and was used for base/court missals and Shresta works. The ink color of the letters and pictures written on it remains for a long time, that is, the written text or drawn picture does not fade away. The 'Gunakaranda Vyuhasutra' of the Lichchavi period in the National Archives is a vivid proof of this. And this paper doesn't tear at the folds like other papers.

When Nepal has to make an intellectual property law that can be recognized at the international level, it is desirable to include geographical indicators that will make Nepal known to the world community. Quality useful products can be produced from the representative of biological diversity found in the geography of Nepal such as Argeli. Therefore, the law should ensure that their cultivation, conservation, and processing industries are done geographically as much as possible. For this reason, if a law is made with arrangements that the benefit from the export marketing of such products will be received by the community rather than limited individuals, the recognition of the national product at the international level will increase. The government should give attention and priority to this and also emphasize on the protection and promotion of such items. 

Laxmi

Link copied successfully