Protection of Geographical Indications in India By Alok Gupta Advocate Delhi.
Examples Feni (liquor) from Goa, Paithani and Banaras saree, Kanchipuram silk saree, Nagpur oranges, Alphonso Mangoes (many other varieties), Kolhapuri chappals, Lonavala Chikki, TirunelveliHalwa,foodstuffs like Mysore rasam and many others Darjeeling tea, Basmati Rice, Bikaneri Bhujia,
At international level Champagne’, ‘Havana’, ‘Tequila’, ‘Scotch Whisky’, ‘Bordeaux’, ‘Burgogne’, ‘Irish Whisky’, ‘Porto’, ‘Cognac’, ‘Sherry’, ‘Camembert’, ‘Gouda’ and many others are some of the popular examples. • We purchase these products simply for their qualitative properties attributing the same to their geographical origin. From ancient times every region had its claim to fame for its products for example Arabia for horses, China for its silk, Dhaka for its muslin, Venice for glass, India for its spices. • Economic Importance and products sell at premium. Basmati rice exports form India and Pakistan, Darjeeling tea, a registered GI sells at a premium world over.
In India the Geographical Indications of Goods (Registration and Protection) Act, 1999 came in force with effect from September 2003. • The salient features of the Act are defines Geographical Indication, provides a mechanism for registration of GIs, establishes a GI Registry, elaborates the concept of authorised user and registered proprietor, higher level of protection for notified goods and remedies for infringements.
Section 2(e) of the Act defines a GI as : “geographical indication”, in relation to goods, means an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be. • Explanation: - For the purposes of this clause, 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;”
‘Goods’ means any agricultural, natural or manufactured goods or any goods of handicraft or of industry and includes food stuff. • ‘Producer’ also defined Produces, deals, exploitation , manufactures as the case may be. • Therefore to qualify for protection an indication must: 1. Identify the good and its area of geographical origin. 2.Possess a given quality, reputation or other characteristics which 3.Is essentially attributable to its area of geographic origin. Manufactured goods over a period of time while agricultural goods easily discernable.
Registry • GI Registry at Chennai having all India jurisdiction. • Registry maintains a Register of GI which is divided in to two parts, Part A and Part B. Part A contains details of distinguishing characteristics of the goods and of the registered proprietor which would be an association of persons or producers or a body representing interest of such producers like for instance the Tea Board, Coffee Board, Spices Board etc. To include all producers a collective reference may be made in the application. • Part B contains particulars of ‘authorised users’ of GI such as those producers (traders and dealers) who have not been included in the original application for registration. (this provision included due to socio economic factors)
Prohibitions • S. 9 lays down the following prohibitions to registration of certain GI:- • the use of which would be likely to deceive or cause confusion; or • the use of which would be contrary to any law for the time being in force;or • which comprises or contains scandalous or obscene matter; or d. which comprises or contains any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India; or e. which would otherwise be disentitled to protection in a court; or f. which are determined to generic names or indications of goods and are, therefore, not or ceases to be protected in their country of origin, or which have fallen in to disuse in that country; or g. which, although literally true as to the territory, region or locality in which the goods originate, but falsely represent to the persons that the goods originate in another territory, region or locality, as the case may be.
Application • Section 11 of the Act deals with application for registration, its contents, making and filing, acceptance or refusal. • Once filed the Registrar will have the Application examined and may consult a expert group to verify the technical details. Thereafter the Examination report is issued to which the Applicant files a reply and on satisfaction the Registrar accepts the Application which will then be published in the GI journal. Any person then can file a Notice of Opposition within a maximum period of four months of publication in the Journal. Thereafter the matter will for reply, evidence and then hearing. If the Registrar accepts the Application then a certificate of registration issued.
Registration is valid for ten years but can be renewed from time to time on payment of renewal fee. • Similar procedure followed for registration as an ‘authorised user’. Effect The Act provides that once the GI is registered, an infringement action can be initiated both by the registered proprietor and by authorised users whose names have been entered on the Register. A registered GI is infringed by a person who not being an authorised user, uses such GI by any means in the designation or presentation that indicates or suggests that such goods originates in a geographical area other than the true place of origin of such goods in a misleading manner or uses a GI which constitutes an act of Unfair competition (Act explains it as dishonest practices).
The Act provides for both civil and criminal remedies for infringement. • The civil includes imposition of fines, forfeiture to government of all goods and things means of which the offence had been committed, damages, account of profit, together with or without any order for delivery of the infringing label and indications for destruction or erasure. • The criminal remedies includes imposition of fine or imprisonment or both.
In addition the statute vide section 25 prohibits registration of GI as a trade mark. The Registrar of Trade Marks shall suo motu or at the request of interested party refuse or invalidate the registration of a trade mark which consists of a GI with respect to goods not originating in the territory which such GI indicates, if use of such a GI as a trade mark would confuse or mislead the public as to the true origin of the goods. However, the Act protects use of trademarks that consists of a GI where it is registered in good faith under the Trade Marks Act or where the right to such trade mark was acquired prior to coming in to force of the Act.
Higher level of protection for notified goods (TRIPS ). This will enable such higher level of protection not only in respect of wines and spirits but for other goods as may be decided by the Govt. • The Act says that in respect of the such notified goods, infringement shall include, interalia, using of such expression as ‘Kind”, “style”, “imitation”, or like expressions by unauthorised users. Such additional protection requires no proof of likelihood of deception. Such prohibition also applies to translations and the use of such GI for notified goods would be forbidden whenever the goods do not come from the area in question. • Also a trade mark shall not be granted, if it contains a GI for Notified goods and the products do not originate from the region in question. • The Act makes no difference between an Indian GI or a foreign GI.
The Act apart form according statutory protection to this form of Intellectual Property would ensure and orderly marketing of premium products. The civil and criminal legal remedies available under the statute would facilitate business confidence among the producers and manufacturers.