Overview of Geographical Indication | IPR

The article 'Overview of Geographical Indication' provides a glimpse into the key aspects and significance of GI. It begins by explaining the concept of GI and its legal framework, which varies across countries but typically involves a registration process to obtain protection. GIs can be applied to a wide range of products, including agricultural goods, food and beverages, handicrafts, and traditional practices.

Introduction

A GI (Geographical Indication) is used for the identification and segregation of such products that are specific to a location due to their origin, traits or reputation that is attributable to that location. Essential property rights are guaranteed by GI which if infringed, would lead to use by unscrupulous commercial operators to the harm of both customers and legitimate users.

Historical Background of Law on Geographical Indication in India

While India’s development in policy-making was taking place, in 1986 the Uruguay Round of GATT negotiations took place. These negotiations were being deliberated while India introduced the infamous economic reforms of 1991 (the LPG- Liberalization, Privatization and Globalization). The new economic reforms of India also pointed towards more open foreign policies. However, owing to its age-old history of a development strategy that was rather inward-looking and restrictive in trade, India remained a cautious and largely passive player during the early years of the Uruguay Round of negotiations. In the International scenario on the other hand, in the year 1994 further, the Marrakesh Agreement led to the founding of the WTO (World Trade Organization).

In the year 1999, the Geographical Indication of Goods (Registration and Protection) Act was enacted by India. This was the first-ever law that provided protection and registration of GI. The enforcement of this Act took place on the 15th of September, 2003. Under the aegis of this Act, the Geographical Indication Registry has been established by the Government of India and the same is to remain under the control of the Controller General of Patents, Designs and Trade Marks to register GIs.

So it can henceforth be understood that the GI registration process began in India in the year 2003. The first ever goods to registered were Darjeeling Tea (both the name and the logo) was the first agricultural product to be registered, followed by Aranmula Kannadi, a Keralan handicraft, and Pochampalli Ikat from Andhra Pradesh. Today’s date, post submission of approximately 700 applications, India has a rich GI granted to over 370 products. The others remain rejected or withdrawn while some are still unattended.

International Protection for Geographical Indication under TRIPS

The most debatable area as per the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) under Intellectual Property Rights has been GI. The definition of GI as provided by TRIPS states the same to be an indication for a product as originating from a particular place, where a given quality, reputation or other characteristics of the product are essentially attributable to its geographical origin. Moreover, a GI gives exclusive rights to a particular area for using a label for a product with the specified attributes or qualities through which it can be attributed to its particular place.

The following two articles of the TRIPS Agreement define the scope of protection as per GI:

• Article 22 prescribes the standard level of protection for all the products as covered therein. The Article promotes protection via GI in order to avoid any misconceptions that might be caused to the public and to avoid unfair competition.
• Article 23 on the other hand prescribes a certain higher degree of protection for GIs of wines and spirits. But the same are also subject to a number of exceptions.

The exceptions are laid down comprehensively in Article 24 where a GI may not be granted protection at all times in certain restricted circumstances. In situations where a particular name has become famous due to its excessive use (for instance Cheddar cheese which does not necessarily mean cheese that is made in Cheddar, UK) and when any of the phrases have already been registered as a trademark are the two cases where GI would not be granted as per the TRIPS Agreement.

Registration

With regards to the registration of a GI, it is imperative to note that the following can submit the application for the same- any individual, producer, organization, or other authority representing the interests of the concerned producers. The application is submitted to the Registrar of GI (Geographical Indications). Three copies of every application must be submitted along with the requisite fee.

Producers’ interests must be stated by the applicant in the application for registration as GI. The application is then usually scrutinized by an expert panel in order to detect any errors or objections. Appeals are allowed to be made in case there is a dispute in this regard. The applicant is supposed to respond to the same within 2 months. Post 3 months of the acceptance of the application, the same shall be published in the GIJ (Geographical Indication Journal).

If there arises any opposition post the publishing of the GI’s approval, the same has to be filed via a notice within the prescribed period. An applicant is permitted to defend the same by way of the counter within a period of 2 months post communication from the opponent. After the filing of the counter-statement, both parties are required to provide evidence by way of an affidavit and relevant supporting documents when the hearing takes place.

In case there is no objection then the applicant’s application shall be considered by the Registrar for GI from the date of filing itself. A certificate shall be issued further along with the seal of “Geographical Indication Registry”. It is important to note that the validity of this registration is 10 years. In case the applicant seeks to renew this period and get the GI registered again, the same can be done for another 10 years at a time. However, if there is no application made for extending the said 10-year period, such GI shall be removed from the GI register.

Rights of Action Against Passing-Off

In parlance with the GI Act of India, nothing as provided in the Act “shall” be regarded to hamper the legal recourse as against any person who willfully misrepresents somebody else’s goods as their own. The principle of passing off can be understood to state that nobody has the right to misrepresent somebody else’s property to belong to such a person who is thereby misrepresenting. The idea behind passing off a lawsuit is thus to defend the name and reputation along with the goodwill of the manufacturers and merchants against the unfair attempts to make a profit from the same.

Article 24.3 of the TRIPS Agreements mentions that no member is asked to give up the protection that they had immediately before their country became a member and implement the TRIPS provisions on GIs. India has made full utilization of this flexibility such as in Section 20(2) of the Geographical Indications of Goods (Registration and Protection) Act, 1999- for maintaining the right of action against passing-off. The same was a part of India’s common law tradition before the introduction of the TRIPS Agreement.

The lawsuits that have been filed for infringement of registered GI or passing off for unregistered GI are to be instituted in such district courts which have the jurisdiction for trying the said suit. However, it is to be noted that no such suits can be instituted in any such courts which are inferior to a district court as per section 66 of the Geographical Indications of Goods (Registration and Protection) Act, 1999.

Legal framework in India

The Geographical Indications of Goods (Registration and Protection) Act, 1999 along with the Geographical Indications (Registration and Protection of Goods) Rules, 2002 are the governing statutes for the registration and regulation of geographical indications (GIs) in India. For the purpose of upholding its national intellectual property laws and for further fulfilling the obligations as prescribed in TRIPS, India implemented the Geographical Indications of Goods (Registration and Protection) Act, 1999.

The Central Government has been operating a Geographical Indication Registry in Chennai under the aegis of the GI Act, 1999. The jurisdiction for the same is spread pan-India. The indications have to be mandatorily covered under Section 2(1) of the GI Act, 1999 so as to be considered validly registered. Section 9 requirements have to be further complied with as the same forbids the registration of geographical indications on certain grounds.

Important Case Law

One of the most important GI cases in India is the Banglar Rasogolla v. Odisha Rasagola (2017). Odisha and West Bengal were both claiming that the Indian sweet- called Rosogulla (in Bengal) and Rasagola (in Odisha) was found by their respective state each and that they should be awarded the relevant GI for the same. Both states put forward their own claims, stories and myths justifying the origin of the Indian sweet to be of their state. Ultimately in the year 2017, Bengal was awarded the GI for the sweet. In order to celebrate the same, the State announced 14th November 2018 to be ‘Rasgulla Divas’. However, when the Odisha government filed a petition for the same in the year 2019, they too received the GI for the sweet 2019.

Another major dispute regarding GI is the Darjeeling Tea GI Tag dispute. While the same was the first GI tag of India, the disputes relating to this GI tag have been numerous. One such dispute relates to the Tea Board starting an action against ITC Limited. Since 2003, ITC Limited has operated a top executive club at the ITC Sonar Hotel under the brand name "Darjeeling Lounge." The Board requested an interim injunction from the Calcutta High Court in 2010 and filed a civil lawsuit there to stop ITC Limited from utilizing the Darjeeling Lounge trademark. Using the name "Darjeeling Lounge" confuses visitors to the Darjeeling Lounge, leading them to believe there is a connection to Darjeeling Tea when there isn't. The Plaintiff's registered GI and Certification trademarks are limited to tea, according to the Court, and the protection they provide cannot include lounge services.

Conclusion

It is imperative to note that owning a GI is a source of pride for the producer as it serves as a symbol of superiority and also guarantees that the said product is original. This certainly increases the viability of the product with regard to its reliability and thus generates greater customer loyalty. The craftsmen involved in creating products with GI have also benefitted from the same due to their work being regarded with global recognition and valuation that is commensurate with their efforts.

References

[1] Siddharth Dalmia, Geographical Indications Law In India- Everything You Must Know, Available Here

[2] Dr. Sudhir Ravindran, The Protection of Geographical Indication in India, Available Here

[3] Rajiv M Patel, Geographical Indications in India: Present scenario, Available Here

[4] Geographical Indication: Background, Available Here

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