This article is authored by Ritwik Sharma, a third-Year, B.A. LL.B. (Hon’s) student at the Rajiv Gandhi National University of Law, Punjab.

INTRODUCTION

On January 2, 2024, the Indian state of West Bengal received the Geographical Indication (GI) tag for the renowned Tangail Saree under the title “Tangail Saree of Bengal.” This recognition, granted after a four-year process, is registered with the West Bengal State Handloom Weavers Co-Operative Society Limited and shall be valid till 7 September 2030 under the Geographical Indications of Goods (Registration and Protection) Act, 1999 (the Indian GI Act).

However, this recognition has sparked sharp opposition in Bangladesh, where critics have argued that the saree’s origin in Bangladesh’s Tangal district give Bangladesh a stronger claim. In response to India’s defense, which asserts that Tangail sarees have been crafted in West Bengal’s Nadia and Purba Bardhaman districts for generations since Partition, Bangladesh has also granted the Tangail saree a GI tag under its Geographical Indication of Goods (Registration and Protection) Act, 2013 (the Bangladesh GI Act). While legal disputes over shared cultural heritage are not new, the Tangail Saree case introduces unique questions around cross-border GI claims.

This blog examines whether India’s recognition of the Tangail saree can be challenged by Bangladesh under the Indian GI Act and whether Bangladesh has substantial grounds to challenge India’s GI recognition under the WTO-TRIPS regime. By analyzing arguments from both sides, this blog highlights legal gaps in the current intellectual property framework in the field of apparel law.

DOES INDIA HAVE THE RIGHT TO CALL THIS SAREE “TANGAIL SAREE OF BENGAL”?

In 2020, the West Bengal State Handloom Weavers Co-Operative Society Limited submitted an application under the name “Tangail Saree of West Bengal” to secure a Geographical Indication (GI) for the Tangail Saree. However, the application faced initial rejection during a formality check, with one key issue being inconsistency in the naming. Terms like “Tangail Saree of West Bengal,” “Fulia Tangail Saree,” “Tangail Jamdani,” and “Tangail Saree (Indian Variety)” were all used within the application, creating ambiguity around the official name. Following a published examination report on December 26, 2022, the Consultative Group advised modifying the GI name. Consequently, the application’s title was amended from “Tangail Saree of West Bengal” to “Tangail Saree of Bengal.”

The above facts prompt two key legal questions. First, on what legal grounds did the Consultative Group recommend changing “West Bengal” to “Bengal”? Second, since neither “Tangail” nor “Bengal” are geographically identifiable locations within India, is it appropriate for India to use these names for a GI?

Regarding the first question, it appears the Consultative Group sought to avoid misleading associations between “West Bengal” and “Tangail,” the latter being a district in Bangladesh. Such a connection could mislead consumers, potentially violating Section 9(a) of the GI Act, which prohibits the registration of GIs likely to deceive or cause confusion. Using “Tangail Saree of West Bengal” could imply that these sarees originate exclusively in West Bengal, overlooking their historical production in Bangladesh’s Tangail district.

Additionally, Section 9(g) may provide another basis for the name change. This section disallows GIs that, while “literally true as to the territory, region or locality in which the goods originate, falsely represent that the goods originate in another territory.” Although it is true that Tangail sarees are tied to the Tangail district, the phrase “of West Bengal” could mislead consumers into believing these sarees are produced solely within West Bengal. Although the application acknowledges the saree as a hybrid of Shantipur and Dhaka-Tangail designs, it also emphasizes the migration of Basak community weavers from Tangail, Bangladesh, to West Bengal during Partition. Given that the Tangail sarees of Bangladesh carry the same name and reputation, “Tangail Saree of West Bengal” may indeed create a misleading impression regarding origin.

To address the second question, it is crucial to closely examine the Explanation of “geographical indication” in Section 2(e) of the Indian GI Act. This provision clarifies that “any name which is not the name of a country, region or locality of that country shall also be considered as the geographical indication if it relates to a specific geographical area and is used upon or in relation to particular goods originating from that country, region or locality, as the case may be.” This interpretation offers compelling support for the validity of “Tangail Saree of Bengal” as a GI designation. While Tangail is geographically in Bangladesh, the saree’s quality and reputation are so strongly tied to the name “Tangail” that the GI designation remains meaningful and accurate for sarees produced in West Bengal.

Moreover, using “Tangail Saree of Bengal” rather than simply “Tangail Saree” allows for an essential distinction between the sarees produced in Bangladesh’s Tangail district and those woven in West Bengal’s Nadia and Purba Bardhaman districts. Traditionally crafted by the “Basak” weaver community of West Bengal which had migrated to India after the Partition, the Tangail saree of Bengal is a simplified Jamdani textile, a hybrid of Shantipuri saree and the original Tangail saree designs. The saree from Tangail, Bangladesh does not exhibit the influence of the Shantipuri saree and does not mirror the textile styles from Nadia and Bardhaman in India. This material difference with the Bangladeshi variant, as stated in West Bengal’s registration is crucial in the attribution of a distinct GI tag to the Tangail Saree of Bengal.

The current phrasing avoids the misleading suggestion that the sarees’ origin is limited to West Bengal while simultaneously affirming the transnational heritage of the Tangail saree. In fact, the phrase “Tangail Saree of Bengal” is not only legally sound but also reinforces cultural authenticity by recognising that “Bengal” refers to a shared cultural and historical region that includes both Bangladesh and West Bengal. This approach highlights the saree’s unique transnational identity, making it a fitting and nuanced geographical indication. From a commercial point of view, while the Tangail Saree is of particular importance to Bangladesh, the rationale behind granting the GI status to West Bengal’s variant is equally based on the commercial needs of the Basak community which has kept the craft alive in India.

DOES BANGLADESH HAVE SUFFICIENT GROUNDS TO CHALLENGE INDIA’S GI TAG?

On February 9, 2024, in response to India’s recognition of “Tangail Saree of Bengal” as a Geographical Indication (GI), Bangladesh listed “Tangail Saree” for GI registration in its official GI journal (No. 32). However, Bangladesh is unlikely to succeed in challenging India’s recognition under Section 27 of the Indian GI Act. The Indian designation “Tangail Saree of Bengal” specifically refers to a saree woven in West Bengal, distinguished by a blend of local environmental attributes, including soil and water, from the Nadia and Purba Bardhaman districts, making it distinct from the Tangail sarees produced in Bangladesh. Thus, under India’s domestic GI Act, a claim from Bangladesh would likely fail due to these clearly defined differences.

Bangladesh’s potential case under the WTO-TRIPS regime also appears weak. While Bangladesh could argue, under Article 22 (2)(a) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), that the Indian registration of “Tangail Saree of Bengal” misleads the public by implying an origin outside its actual geographical source, this argument may lack merit. The inclusion of “of Bengal” sufficiently indicates the saree’s West Bengal origin, making it unlikely to cause public confusion. Furthermore, the saree’s production history, including the migration of Tangail weavers to West Bengal and the blending of styles, reinforces “Bengal” as a fitting description, one that prevents potential misrepresentation.

Alternatively, Bangladesh might argue that such public misunderstanding constitutes unfair competition under Article 22 (2)(b) of TRIPS, as interpreted through Article 10(2)of the Paris Convention (1967). However, Bangladesh would face a high burden of proof in showing that India’s GI recognition is “contrary to honest business or industrial practices” under Article 10bis (2) of the Paris Convention. India’s four-year evaluation process, including a three-month period for objections, strengthens the legitimacy of the GI designation. Notably, Bangladesh pursued its GI registration only after India’s recognition had passed through this rigorous process, further weakening claims of unfair competition.

THE WAY FORWARD

Bangladesh’s objections to India’s GI registration lack a solid legal basis. However, this issue underscores the complexity of intellectual property rights for shared cultural heritage across borders. India’s justification for the GI designation, while reasonable, currently finds limited protection under the Indian GI Act. The unique case of migration of weavers from Tangail, Bangladesh, to West Bengal and the subsequent transfer of knowledge, skills, and traditions to the India is not adequately covered by the existing Indian GI Act. This gap reveals an opportunity for the Act to better address the intellectual property rights of communities whose cultural practices have crossed borders due to historical migration.

The Ministry of Commerce & Industry’s recent notice inviting suggestions for amendments to the GI Act comes at an opportune time. With only 643 GI registrations to date, India lags behind regions such as the European Union and China, limiting the potential for protecting and commercializing unique products. Complex cases like the Tangail Saree dispute risk creating further delays in the registration process. To prevent these challenges from becoming roadblocks, India should consider incorporating explicit provisions to protect the cultural products produced by communities that have historically migrated from a foreign nation to India. A statutory test could be designed to ascertain whether such products have attained a uniquely Indian identity over time, such as the Tangail saree of Bengal created by the Basak community in this case, allowing them to retain authentic ties to the names of foreign territories, like “Tangail,” in which their cultural products originated. Such provisions, tailored to protect the unique cultural products of India, would protect consumer interests and strengthen India’s GI framework.