This chapter has discussed the legal and economic rationale behind GIs, the development aspect of agricultural GIs, and the theoretical perspective of law, institutions and development. This background has been given in order to understand the legal and economic rationale of GIs with an emphasis on the rural and economic development aspect of agriculture-based GIs. Further, it has been shown that laws and institutions are inextricably linked with development. It was important to discuss in the background that the current thesis is proposing a separate GI law for Pakistan, for the better protection of GIs and economic development provided that there is also institutional reform.
The next chapters will discuss the inadequacies in the present system of protection of GIs in Pakistan. Whilst examining the shortcomings of the trademark law of Pakistan, the legislation and case law of the EU and India will be considered as examples of the protection of agricultural GIs.
60
CHAPTER 3
THE SYSTEM OF PROTECTION OF GEOGRAPHICAL INDICATIONS IN PAKISTAN AND ITS INADEQUACIES
3.1INTRODUCTION
The last chapter considered the legal and economic justifications of GIs. It also discussed the correlation between law, institutions and development. This chapter will examine the present system of protection of GIs in Pakistan and will shed light on its inadequacies. While examining the shortcomings of the trademark law of Pakistan, the legislation and case law of the EU and India will also be looked at as examples of protection for their agricultural GIs.
There is no denying that the emergence of the WTO acted as a catalyst for resolving the decades old, contentious issues surrounding GI protection globally. In fact, the TRIPS Agreement has endeavoured to effectuate a compromise in terms of different demands. It ‘has succeeded in effecting a compromise between civil and common law systems, arguably by providing no more than minimum standards of protection, and allowing members the freedom to choose the legal means of protection’.1
Out of the 167 countries that protect GIs, 111 have adopted a sui generis or other specific system of protection and 56 countries rely on their trademark protection systems.2 In the case of developing countries, such as Pakistan and India which have a strong agriculture sector and a tradition in handicrafts and potentially valuable
1 Gail Evans: Protection of Geographical Indications in the EU and US under Sui Generis &
Trademarks Systems(19), See also Article 22.2 of the TRIPS Agreement. Agreement on Trade-Related Aspects of Intellectual Property Rights, (Annex 1c, Marrakesh Agreement Establishing the World Trade Organization, signed 15 April 1994).
2 See Dev Gangjee, Relocating the Law of Geographical Indications (Cambridge University Press 2012) 201.
61
traditional knowledge, GIs can be an important public policy tool for the development of the economy and livelihood of farmers and skilled workers. According to Waglé,
‘the importance of GIs in Asia-Pacific has to be understood in the wider context of protecting and preserving IP pertaining to traditional cultures, assets and production methods in some of the world’s oldest human settlements’.3
The aim of this chapter is to examine the present Trademarks Ordinance4 of Pakistan and to shed light on its inadequacies with regard to legal protection of GIs. There is no case law on GIs in Pakistan, hence the case law of Europe will be used in this chapter for examples. The legislations of both EU and India will also be looked at as examples for comparison in this chapter. In the case of Europe, both the recently repealed EU Regulation 510/2006 and the current Quality Schemes Regulation 1511/2012 (QSR) will be referred to.5
3 Swarnim Waglé, Geographical Indications as Trade Related Intellectual Property: Relevance and Implications for Human Development in Asia-Pacific (Asia Pacific Trade and Investment Initiative, UNDP Regional Centre in Colombo, 2007) 6, 7.
4 The Trademarks Ordinance 2001 of Pakistan was promulgated in order to comply with the TRIPS Agreement; An Ordinance to amend and consolidate the law relating to trade marks (Ordinance No 19 of 2001, 13 April 2001) (Trademarks Ordinance). Due to the coup in Pakistan in October 1999, there was no Parliament Assembly until 2002. The Chief Executive/President at that time could only promulgate Ordinances and this is why it is not written as an Act. However, it has the same effect as an Act of Parliament, since after Parliament was restored in Pakistan, it was ratified by the Assembly as part of the Seventeenth Amendment in the Constitution of the Islamic Republic of Pakistan. The Trademarks Ordinance 2001 was made implementable after the issuance of its Rules in 2003.
5 The main case law on GIs in Europe has developed from the interpretation and application of EU Regulation 510/2006 and its predecessor Regulation 2081/92. EU Regulation 1511/2012 has been enforced only since last year. Both the former EU Regulation 510/2006 and current Regulation 1511/2012 are used for having broad spectrum to use as examples. Nevertheless, the Quality Schemes Regulation 1511/2012 is discussed in detail in Chapter 5. Regulation (EU) No 1511/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs [2012] OJ L343/1; Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs [1992] OJ L208/1; Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs [2006] OJ L93/12.
62