IN a replay of Superbasmati battle, Pashmina shawl is the latest bone of contention between Pakistan and India over claims to its intellectual property rights. The clash erupted when India went ahead to apply for a geographical indication (GI) of the wool product in order to protect artisans against cheaper, machine-made fakes now flooding the market.

The move has been challenged by Pakistan. India claims that this popular luxury shawl only originates in Indian-held Kashmir territory while the fact remains that it is also produced in Pakistan’s Northern Areas. Pashmina is a textile which became popular in the West in the late 1990s. It is very soft and warm, and used primarily in scarves and shawls. Its name is derived from the Persian word pashm, which refers to the undercoat of fur on many animals –– in this case, the goat.

Pakistan and India have already locked their horns in an unending battle over the registration of Superbasmati as a geographical indication and have failed to reach a satisfactory settlement.

What is of interest in this conflict is the absence of concrete measures by the two countries to seriously solve the problem. This conflict is now set to take a new turn in the months ahead as New Delhi has decided to make lab-produced Pusa 1121 a member of its Basmati family.

And for the purpose, Indian agriculture ministry would soon redefine Basmati. That is bound to trigger a fresh round of clash between the traditional foes. Regarding Pashmina, Pakistan is reportedly ready to accept a joint GI tag over the Kashmiri shawl. But India has certain reservations. It says it would agree to that only if Pakistani Pashmina is proven to be of the same quality as the Indian variety.

The dispute surfaced when the Srinagar-based Craft Development Institute filed an application with the Geographical Indications Registry in Chennai for Pashmina.

The Rawalpindi Chamber of Commerce and Industry immediately challenged this on grounds that Pashmina shawls are also woven in Pakistan’s Gilgit-Baltistan region and that India could not solely claim the GI right.

The chamber filed a complaint last year (2007) with the registry through a New Delhi-based lawyer Najmi Waziri. India’s case became further complicated when another local body, the Kashmir Handmade Pashmina Promotion Trust, also served a notice. But later the two groups tentatively agreed to jointly apply for the Indian registration.

In India, GIs can be filed under the Geographical Indications of Goods Act, 1999.

The Indian Pashmina shawls industry has annual sales of Rs3500-6500 million and has impressed generations of women for their spectacular ability to slip through a ring. It is made from the fleece of the Changra goat, found in the higher altitudes of the Ladakh and Tibet regions. How Pashmina is faring in Pakistan is not known. Pashmina, however, is not the only case in point of a GI being disputed by different countries.

Other products particularly in the arts and crafts whose origins lie along the border lines in the subcontinent are Kutchi-work in Gujarat, Kantha embroidery and Madhubani paintings in Bihar. All of these have not been registered as GIs simply because it is not clear how are these entities to be treated.

Neither Trips law of the WTO nor the Indian legislation provides for the joint registration of GIs. At best, such an arrangement will have to be arrived at through bilateral or multilateral agreements.

Meanwhile, Pashmina market in Kashmir is facing a parallel flourishing trade in fakes in the wake of a rise in global demand for the luxury product that has now become a fashion statement. Fakes are a fallout of the prolonged state of militancy and violence in the occupied Kashmir as the local industry suffered an acute shortage of raw material.

In disputes between the two countries over GIs, the problem mainly stems from the fact that Pakistan is yet to have a GI law in place. Once Pakistan adopts a GI law, then a possible solution is simultaneous registration of homonymous GIs by both countries. And there are many commodities which are identifiable for being produced in the subcontinent and belonging to more than one country.

Homonyms are names which consist of, or contain, the same identifier for different geographical places. And under the Trips, protection is accorded to each indication, subject to certain provisions.

Meanwhile, Rice Exporters Association of Pakistan has been too critical of the government for its failure to adopt a legislation on the geographical indications (GI), a draft of which was provided by the Association to the ministry concerned.

The delay has benefited India in a big way. While the Association claims that India has notified Superbasmati in the world market as its ‘trade mark’ (exclusive Indian grain) and as a result its member firms have suffered a loss worth millions of dollars, the fact remains that it is all media reports.

The fact remains that it can only be registered as a GI by New Delhi which has not yet done so. The commerce secretaries of the two countries had been meeting off and one but have failed to reach a definite solution or compromise.

What is problematic is the fact that Basmati is sui generis to both India and Pakistan and, in a sense belongs to both countries.

Pakistan claims that the Superbasmati is an indigenous discovery. Recently Pakistani Association had stated in a presentation to the EU that its Superbasmati is an authentic variety developed as per the original methods under which Basmati-370 was approved for the first time.

Basmati-370 was first found at Kolu Tarrar in Hafizabad district in 1926. India did not grow basmati in commercial quantities since the 1970s and eventually developed a variety called Pusa. What India has done in recent months, and which could be described as a setback to Pakistan, is that it acquired a first mover advantage by making the first move to register the Superbasmati as an Indian GI in the EU.

As a result of this development, the scheduled GI talks between India and Pakistan were called off, with Pakistan alleging that India has resorted to ‘subversive’ tactics to acquire the IPR and GI. However, the fault lies with Pakistani trade bureaucracy for not enacting a GI law as yet. The next battle will be fought over what Indians describe a distant cousin of the Basmati family -- Pusa 1121. A new definition of Basmati would include this variety.

The agriculture ministry also intends to register Basmati under the International Plant Variety Protection Act. The Act would provide safeguard for only 15 years. Once Pusa 1121 is declared part of the Basmati family, exporters can market it as a cheaper alternative to the more expensive traditional varieties and increase their sales volumes.