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Fishermen fishing for Hilsa Fish Patent

By Apoorwa Iyer July 29, 2016

The fishermen of West Bengal are worried over the growing attempts towards monopolization over the Hilsa by Bangladesh. The most loved kind of Hilsa, the Padma Ilish as known in India or the Tenualosa Ilish as known in Bangladesh, is considered to be the National Fish of Bangladesh; it contributes extensively to Bangladesh’s fish production and also the GDP in turn. This is the reason behind Bangladesh’s fervent attempt to protect the Hilsa from draining into the Indian Territory. The bill titled ‘Geographical Indicative Products (Registration and Protection) Act 2013’ was passed by the Bangladesh Parliament with a strong inclination towards the possession of rights over Hilsa. This effort undertaken by the Bangladesh Parliament was reflected in several articles and news – you can read about it here. Bangladesh has been struggling to win this conflict with India as it already feels that India has wrongfully registered GI (Geographical Indication) for Jamdani (Sari), Nakshi Kantha (type of embroidered quilt) and Fazli (mango).

Hilsa has a huge demand market in Bengal too, as it is the most loved food for most of the Bengalis and the fishermen fear that losing complete rights over this would be an adverse hit to their livelihood prospects. While 60% of the Hilsa fish is caught in Bangladesh and 20% is caught in Myanmar, India gets only a meagre share of 15%, the rest going to Oman, Pakistan and Bahrain. The Fishermen’s Union wants to protect the Hilsa found in the Diamond Harbour region, the eastern banks of Hooghly River, where the river meets the Bay of Bengal. (This Hilsa protection struggle was in the news recently - you can read about it here.)

However, the fishermen of West Bengal, India, are desperately urging the Centre for patent protection of Hilsa, trying to follow the path of Darjeeling Tea and Joynagarer Moya, to name a few. This demand of the fishermen is based on a humongous misconception. Darjeeling tea and Joynagarer Moya were recognised as GIs and not patent registered. The option left with the fishermen is to follow the path of Hilsa registration as a GI.

As per S. 1(3)(e) of the Geographical Indications of Goods (Registration and Protection) Act, 1999, (the GI Act) ‘geographical indication’ includes natural goods originating in the territory of India or in any region within the territory if India. Hilsa, found in Diamond Harbour region of Bengal, can be considered to be a geographical indication in respect of this section.

Hilsa in India can be registered as geographical indication for class 29 goods, which explicitly includes the classification of ‘Fish’. The Fourth Schedule of the Geographical Indications of Goods (Registration and Protection) Rules, 2002 provides for such classification of goods.

The registration under the GI Act would provide protection to the Diamond Harbour Hilsa, against all unfair trade practices, by providing remedy to the infringement of such rights in the form of passing off. Passing off in its simplest sense refers to an act of misrepresentation that is likely to confuse an average person to believe a particular good/service being offered is that of another. Once registered under the GI Act, the Bengal fishermen would be in a position to claim their rights and initiate legal proceedings against any third party attempting to pass off the Diamond Harbour Hilsa as their own property. This right is provided to the fishermen by S. 66 and S. 67 of the GI Act. S. 66 of the GI Act provides the right to initiate a suit against such infringement or passing off in the District Court having jurisdiction or any higher court, in accordance with the situation. S. 67 of the GI Act provides the relief that may be granted by the respective courts either in the form of compensation for the damages or an infringement order restraining the defendant from such passing off as adversely affecting the plaintiff or the fishermen in this case.

Now, this war for Hilsa Protection can be decided only by time as both countries possess grounds as well as means for the registration of Hilsa as a Geographical Indication of their respective country.

Tags: Fishermen , Hilsa Fish Patent , Bangladesh , Padma Ilish , ‘Geographical Indicative Products (Registration and Protection) Act 2013 , Geographical Indication , GI , Hilsa , Diamond Harbour , Bay of Bengal , Geographical Indications of Goods (Registration and Protection) Act , S. 1(3)(e) , Section 66 , Section 67 , 1999

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