Kathmandu School of Law Review

P-ISSN : 2091-2110, E-ISSN : 2773-8159, DOI : 10.46985, Publisher : Kathmandu School of Law, Nepal
Annual flagship journal of Kathmandu School of Law, Nepal

Volume 11, Issue 1, April 2022
Articles

Significance of Geographical Indications Laws in Nepal: A Comparative Study of Bhaktapur "Juju Dhau” and Greece "Greek Yogurt"

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  • Laxmi Sapkota
Laxmi Sapkota
Associate Professor at Kathmandu School of Law (KSL)
DOI: https://doi.org/10.46985/kslr.v11i1.2216

Published 2022-04-01

Keywords

  • Juju Dhau, Greek Yogurt, Geographical Indication, Intellectual Property, Sui Generis.

How to Cite

Sapkota , L. (2022). Significance of Geographical Indications Laws in Nepal: A Comparative Study of Bhaktapur "Juju Dhau” and Greece "Greek Yogurt". Kathmandu School of Law Review, 11(1), 60–73. https://doi.org/10.46985/kslr.v11i1.2216
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Abstract

Juju Dhau (Yoghurt) is popularly known in Bhaktapur (Nepal) with its unique taste and quality. Regrettably it has not acquired global recognition yet. Apparently, Greek Yogurt, a similar type of Yogurt from Greece, enjoys international popularity. In this paper, the researcher conducted a survey alongside key informant interviews to reflect the perception and preference of Juju Dhau and comparatively analyzed the acquired data and information with Greek Yogurt.. The result of the study reveals that the primary reason for producing Juju Dhau is its market access, good earning through creation of employment and consumer preferences on Juju Dhau. Additionally, the study reveals the perception of retailers is positive on Juju Dhau due to it being healthy, tasty and greatness in its flavor. The comparative study suggests about the risk of Greek Yogurt having the threat to become a genericide at a particular point of time. In this pretext, the Juju Dhau has to be promoted in international market but due diligence should be given while promoting it taking special reference form Greek experience. Furthermore, Juju Dhau is an intangible cultural heritage of Nepal. Nepal being a party to the Convention for the Safeguarding of the Intangible Cultural Heritage, it has binding obligation to safeguard Juju Dhau. The researcher, after comprehensive analysis of acquired data and information, identified the necessity of sui generis laws to be enacted merely for Juju Dhau. These laws will ultimately facilitate the recognition, protection, and promotion of Juju Dhau in Nepal and beyond.

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References

  1. Nepal Ko Sambhidhan (Constitution of Nepal), art. 25.
  2. Article 25 of the Constitution of Nepal has stated 'property' as any form of property, including moveable and immovable property, and includes an intellectual property right.
  3. Nepal Ko Sambhidhan (Constitution of Nepal), sch. 5.
  4. The Muluki Dewani Samhita, 2074 (The National Civil Code 2017), Nepal, s. 254.
  5. Ibid, s. 256 (1) (e).
  6. Samhita (n 3), s. 256(2).
  7. Latha R Nair & Rajendra Kumar, Geographical Indication A Search for Identity, LexisNexis, 2006, pp. 89-96.
  8. Agreement on Trade-Related Aspects of Intellectual Property Right, 15 April 1994, Morocco, 1 January 1995, art. 22.
  9. Laxmi Sapkota, ’Comparative Study of Sui Generis Geographical Indications Laws in South Asian Countries: A Way Forward to Nepal’, Journal of Global Research & Analysis, volume 11:2, 2022, p.31.
  10. The Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, 31 October, 1950, Lisbon, art. 2.
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  12. ‘Bhaktapur Municipality: Brief Introduction’, Bhaktapur Municipality, available at https://bhaktapurmun.gov.np/en/node/4, accessed on 28 March 2022.
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  14. Ibid.
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  17. Ibid, Greek Yoghurt is that it has been strained to get rid of most of the whey along with some of the salts and sugars dissolved in it, resulting in a thicker consistency then regular yoghurt. Further, it serves a very thick, creamy, smooth, and non-pasty texture, which is the major driving force of its growth. It is comprised of freshly fermented dairy products with a high protein content of 8 to 12% with a minimum of 8 grams per serving with low sugar.
  18. Ibid.
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  40. Dev S. Gangee, ‘Sui Generis or Independent GI Protection’, Cambridge University Press, 2020, p. 256.
  41. Michael Blakeney, ‘The Protection of Geographical Indication, Law and Practice’, Elgar Intellectual Property Law and Practice Series, 2014.
  42. Ibid, p. 11
  43. Ibid, p. 9.
  44. Ibid, p.12.
  45. Blakeney, (n 40).
  46. Melissa A. Loucks, ‘Trademarks and Geographical Indications: Conflict or Coexistence? ‘2012, The University of Western Ontario, available at https://ir.lib.uwo.ca/cgi/viewcontent.cgi?article=2044&context=etd, accessed on 3 May 2022.
  47. Binda Acharya, et al., ‘Report of the Task Force formed to make more effective work related to' industrial property,’ 2077, Department of Industry, 2020, available at https://doind.gov.np/reports, accessed on 2 May 2022.
  48. J In her opinion, collective marks protection is not sufficient, as it provides protection only in the territory of Nepal. However, if there is protection for GI (specifically) under a sui generis method, it will be a platform for protection at the international level following the WIPO exposure for the same. Relatively recent national interest, unaware producers of goods who are not educated on the scope of protection through GI (traditional knowledge holders of certain communities or tribes) are a couple of reasons among others for not having Sui Generis GI laws.
  49. Nepal also needs sui generis GI because there are a number of areas and sectors (products) where Nepal could extend the protection through Geographical Indication. A collective mark (registered as a Trademark) is one of the good ways to identify the product/goods and differentiate it from other foods/ products. However, the use of “mark” per se does not necessarily reflect the geography of the product or the goods. Therefore, the collective mark directive (under PDTA 1965) is only the basic framework for the immediate relief or action in relation to products for Geographical Indication. Collective marks, although gives the scope of protection are not the core differentiating protection mechanism. Therefore, sui generis laws for the protection of GI is necessary. As immediate relief or action for protection, Collective marks could be used. However, sui generis laws are necessary to protect GIs as this ensures durable, unique, specific, and distinguishing protection mechanisms. Sui Generis Laws are product specific and have special provisions in relation to the specific product in question. As a result, Sui Generis Laws are preferable to Collective Mark Law.
  50. He mentions, the best way to brand the Nepali Agricultural Product is through the GI laws and in Nepal also GI protection creates employment therefore, the laws on GI are necessary. Still, there is administrative difficulty in enacting the laws. The industry ministry has to see the prompt issues first and then the other. As IP is not the only issue or it is not considered as one of the important issues in the department. So, how could it give priority to the GI with its separate section to protect it?
  51. He claims that there is no positive mentality of government officials to make the laws of GI. He had worked in the four phases of the drafting of IP laws but it is not enacted. Therefore, pressure should be given on the government to bring the sui generis GI laws. He even claims that officials are transferred, they cannot give work fully on such acts, which creates the problem in bringing the laws.
  52. He says that there is no authenticity in the Collective Mark Directive. As, Patent, Design, and Trademark Act, 2022 has not recognized collective marks as intellectual property. There might be a problem if someone raises questions about the legitimacy of the directives. Likewise, he even told that GI being the communal rights benefits the entire community and its right transfers from generation to generation whereas, collective right is a personal right or the property under it is the private property and it can be transferred from one group to another other and there may be monopoly where the quality of the product may be challenged. In the case of Juju Dhau also there are high chances of many producers of the Juju Dhau being deprived to use that name. He recommends a better way for the protection of 'Juju Dhau' in Nepal, that will come up with the ideas of reflect on the necessity of Sui generis GIs law. As there is the instance that Basmati has been registered by India, Pakistan, and other countries and it is also produced in Nepal what about Commonly Shared GI Mark it has not been addressed in the international laws too. The problem is there might be questions about the validity of the directives. The directive-led laws are also uncertain. If Juju Dhau is registered as the collective mark then it would be a private right, not the community rights and the rights might be transferred however the GI rights are given to the same community only.
  53. She opines that the government must ensure availability of required infrastructures and make related investment in development of Sui Genris GI regimes as this regime can best justify protection of GI. Sui generis model is the most appropriate way to avoid losing right over our own origin. To cite an example, despite having ample evidence that Basmati Rice has been originated, produced and consumed in Nepal for centuries, Nepal had to witness how India and Pakistan registered Basmati rice as their Geographical Indication (GI) asserting that the product has originated from their particular places. Research papers that have been published by national and international scientist’s states that the Terai region in the south of Nepal is a major area oforigin of this rice. Nepal Agricultural Research Council (NARC) has already portrayed the character of different varieties of local Basmati Rice of Nepal with the help of morphology, DNA and isozyme tools. The evidences are submitted to European Council; decision is yet to be made. To emit such issues in the future, a concrete GI Law is must in Nepal.
  54. There are 38 location-specific unique crop landraces, 20 popular location-specific crops, 53 geo-linked popular crop landraces along with their important traits, 21 popular geo-linked agro-products, and 8 GI products from Nepal in an international market.
  55. Laxmi Sapkota, ‘Necessity of Sui Generis Geographical Indication Laws in Nepal’, National Judicial Academy Nepal, 2022,
  56. Laxmi Sapkota, ‘Evolution of Geographical Indication in Nepal: A Way Forward’, Nepal Bar Council Journal, Nepal, 2021.
  57. ‘International Property Rights Index, 2020’, 2020, Samriddhi Foundation, available at https://samriddhi.org/ipri-release-updates/international-property-rights-index-2020-released/#:~:text=, accessed on 3 May 2022.
  58. Pratyush Nath Uprety, ‘Geographical Indications in Nepal: In Search of Identity’ Elgar Publishing, 2019, pp. 235-266.
  59. For instance, the deadline for implementing the convention for Nepal has been extended thrice. The country, after missing the first deadline in 2006, was provided the period of 2007-2015 to update and reformulate its existing IPR law which has now been extended to 2021.
  60. Nepal Sandhi Ain 2047 (Nepal Treaty Act, 1990), Nepal, s.9.