February Issue 2007

There seems to be no end to the political and military wrangling between the two nuclear-armed neighbours. From Kashmir to Krishanganga to Baglihar to Siachen, the battle lines are drawn. And now the war has spread to a totally different arena: the Kashmiri pashmina. The Indians are staking a claim on it

Pakistan’s commerce ministry was caught napping when the Indians moved to seek a patent on the Kashmiri pashmina. After the initial shock had subsided, Islamabad swung into its trademark “damage control” mode. It is planning to challenge what it sees as India’s “unfounded” claim over the Intellectual Property Rights (IPRs) of the Kashmiri pashmina shawl in the international market, since it is a product that is traditionally manufactured on both sides of the disputed territory of Jammu and Kashmir.

Commerce Secretary Syed Asif Shah confirmed to Newsline that the government had, in principle, made the decision to challenge the Indian claim, but he refused to give a time frame, or share any more details, as it would go against the “national interests” of the country to speak on the issue prematurely. The government is weighing a few legal options as well.

Being a signatory to the Trade Related Intellectual Property Rights (TRIPS), Pakistan is also mulling the option of moving the World Trade Organisation (WTO) dispute settlement body whose decision is binding on the parties (countries) involved.

The other option is to file the case in an Indian court and contest it there.

However, a “final decision has not been reached so far, since there are strong differences of opinion on each option,” said a senior official, on condition of anonymity.

Sources in the ministry reveal that indecisiveness prevails over the enactment of the Geographical Indication Law (GIL), which is a prerequisite to move any international dispute settlement body.

The law, which aims to protect the national heritage of different countries through the geographical identification of agricultural and food products, has been delayed for mysterious reasons and the government has repeatedly faced embarrassing situations on account of it.

It is ironic that various related government offices are impeding the passage of the law in a bid to claim greater turf and leverage on the issue. The GIL issue is singularly in the domain of the commerce ministry, yet the ministries of industries and agriculture have been openly claiming that this issue falls within their purview.

The legislation has to get the mandatory parliamentary approval, or it could be enacted through a Presidential Ordinance. Law ministry officials maintain that the law is in the final stages of drafting and would soon be sent to the parliament for enactment.

This is not the first time that Pakistan is struggling for damage control on a contentious issue. Islamabad had to face an equally embarrassing situation over a similar Indian move to register ‘Super Basmati’ rice as its national trademark in the world market.

Pakistan registered ‘Super Basmati’ in 1995 in the Official Gazette under its Seeds Act 1976 — incidentally, this does not conform to the international registration benchmarks — but it has been producing and exporting rice since way back in 1985.

Officials here believe that the Indian version of the commodity has no legal space in the international market as Pakistan had already registered it as a national trademark. In fact, ‘Super Basmati’ was globally recognised as being of Pakistani origin. The country exports over 800,000 tonnes of the commodity every year.

Taking advantage of the absence of a Pakistan GIL, India unfairly registered it nationally as per the TRIPS standards, and followed it up by exporting it as yet another made-in-India product.

Dubai-based importers used to buy the Pakistani rice in bulk, which would then either be repackaged there as Indian basmati or shipped to India for packaging, with its trademark clearly stamped on the bags.

Understandably, the government was concerned that the Indian move would reduce the export market share held by Pakistani rice exporters, particularly in the Middle East and Britain. After the Pakistan government woke up to the controversy, the European Union (EU) came up with a categorical and clear stance that Super Basmati would be a product of the Punjab, regardless of whether it came from India or Pakistan. The EU policy led the two nations to jointly ponder over the issue.

Incidentally, both India and Pakistan had already taken the Super Basmati issue to the WTO dispute settlement forum to frustrate an American move to claim patent rights for a similar rice species. The WTO body had ruled in favour of India and Pakistan, paving the way for an amicable bilateral resolution of the conflict over the issue.

Under the composite trade talks, both Islamabad and New Delhi have agreed to constitute a working group at the beginning of February 2006 to consider joint or separate registration of Super Basmati in the EU market in keeping with their ruling. But no progress has been made on the issue, so far.

And neither have the concerned ministries who decided to fight the Indian claim at the international level moved on the long-pending GIL law. It has got bogged down due to “vested interests,” who stand to gain financially. Though the commerce ministry has been holding meetings to resolve differences between growers, producers and other stakeholders, the results are yet to be seen in the form of a consensus law.

Twice the draft law was sent to the stakeholders to include the maximum number of GIL products. The initial list comprised 24 items, but the fresh one, awaiting legislation, also includes Basmati rice, mango varieties from Sindh, ginger from Kamalia and, of course, the pashmina shawl from Kashmir.

Legal sources maintain that the GIL will have to be enacted at the earliest, as the Trademark Ordinance is not sufficient to win intellectual property rights over products under the WTO regulations. Consequently, Pakistan’s efforts to block India’s move to seek a patent on the pashmina may come to naught.

India and Pakistan may succeed in resolving the Super Basmati issue by seeking joint registration for it. However, adopting the same modus operandi for a heritage product originating from a disputed territory sounds like a remote possibility, as it could open up a Pandora’s box for the two claimants to Kashmir.