This article is written by Priyanka, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.
Table of Contents
Introduction
Most of us heard about the product like champagne, Darjeeling Tea, Mysore Silk, and Scotch, and there is one thing common among all that all of them are related to a particular geographical region that acts a source of origin for these goods; that is why these geographical also work as authentication for quality and specific unique attributes that these goods possess due to their geographical origin.
What do we mean by ‘Geographical Indication’?
Under the Section 2 (e) of the G.I. Act, 1999 defines “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 characteristics of such goods is essentially attributable to its geographical origin and in a 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.”
History
Why G.I. Act, 1999 got introduced in India?
Under the TRIPS (Trade-Related Aspects of Intellectual Property), countries do not have a mandatory obligation to protect a geographical indication if that geographical indication is not covered within the country of its origin. Moreover, India did not have any laws before 1999 related to geographical indication which could protect the interest of the producers of G.I. goods.
So what made India introduce the Geographical Indications of Goods (Registration and Protection) Act, 1999? It was due to three controversial cases related to neem, turmeric, and basmati.
In the case of Neem, a US Company, WR Grace & Co. was granted patents for storage process and extraction. The Indian Government filed a complaint against WR Grace & Co. with the U.S. Patent Office accusing WR Grace & Co. of copying an Indian Invention. However, later on, they realised that WR Grace & Co. had created a new invention for the neem extraction process. The Patent was not based on traditional Indian knowledge, so the Indian Government withdrew its complaint.
In March 1995, in the case of turmeric, a US Patent was granted to two NRI’s for turmeric to be used as a wound-healing agent. CSIR opposed this Patent at the USPTO based on “Prior Art”, it claimed that turmeric had been used for thousand years for treating wounds and rashes in India, and hence it was not a new invention. CSIR showed an antique Sanskrit manuscript and a paper published in 1953 in the Indian Medical Association Journal as documentary evidence. The U.S. patent office upheld the objections and cancelled the Patent.
In the case of basmati, a US Patent granted to Texas-based Rice Tec Inc claimed that their invention is related to a new breed of rice plants and grains. The USPTO approved the Patent on “Basmati Rice Line and Grains” in 997. After three years of examination and accepted 20 claims put forward by Rice Tec Inc., India opposed the Patent and challenged it. A team of agricultural scientists presented various proofs and supporting information to establish prior art in this area in India. Evidence against the claim was so strong that the company withdrew 15 claims, and only five claims out of 20 claims of the company RiceTec Inc. survived Indian challenges. The patent granted to new hybrid variants that have nothing to do with basmati.
After these three cases, the Indian government, to prevent unfair exploitation, realised the importance of having comprehensive legislation for the registration and providing adequate legal protection to geographical indications. The Parliament enacted the Geographical Indications of Goods (Registration and Protection) Act, 1999, which came into power with effect from 15th September 2003.
The present G.I. is governed by the Geographical Indications of Goods (Registration & Protection) Act, 1999, and the Geographical Indication of Goods (Regulation and Protection) Rules, 2002.
Objectives of the G.I. Act,1999
The objectives of the G.I. Act 1999 is threefold,
- It is to prohibit unauthorised persons from misusing geographical indications and to protect consumers from deception,
- Particular law governing the geographical indication of goods in India which could well enough to cover the concern of yielders of such goods, and
- To encourage and promote exports of the goods bearing India Geographical Indication.
Features of G.I. Act, 1999
- Definitions and interpretations of various essential terms like “geographical indication”, “goods”, “producers”, “registered proprietor”, “authorized user”etc.
- Prerequisite for keeping a register of G.I. in Part A and Part B. Part A will include all registered G.I. . Part B will have the complete information of registered authorised users.
- Registration of G.I. of goods in specified categories.
- Refusal of registration of specific G.I.
- Prerequisites for framing of rules by Central Government for filing the application, its contents and materials relating to the substantive examination of geographical indication applications.
- Compulsory publication of all approved geographical indication applications and for inviting oppositions.
- Listing authorised users of registered geographical indications and giving terms for infringement action either by a registered proprietor or an authorised user.
- Requirements for a higher level of protection for notified goods.
- Prohibition of assignment etc. of a G.I. as it is public property.
- Prohibition on the registration of a geographical indication as a trademark.
- Filing appeal against Registrar’s decision to the Intellectual Property Appellate Board established under the Trade Mark legislation.
- Provision relating to offences and penalties.
- Requirement describing the impacts of registration and the rights given by registration.
- Requirement for interchange powers of the registrar, keeping of Index, protection of homonymous geographical indications etc.
Geographical Indication registration
Section 8 of the G.I. Act gives that a Geographical Indication may be registered regarding any or all of the goods, included in such types of goods as may be listed by the registrar. Moreover, regarding a particular area of a country, or a region or locality in that territory, as the case may be. According to the prescribed manner, the registrar may also classify the goods according to the international division of goods to register geographical indications and publish in an alphabetical index of various goods.
Who can apply for G.I.?
Any union of persons or producers or any organisation or authority established by or under any law expressing the concern of the producers of the concerned goods can apply for registration of a geographical indication.
A producer will apply for the registration as an approved user of a registered geographical indication and collectively by the registered proprietor of the said G.I. The ‘producer’ means in G.I. Act-
- anyone who provides the goods in case agricultural goods, and involves the person who prepares or packages such goods;
- anyone who utilises the goods in case of natural goods;
- anyone who creates or produces the handiwork or manufactured goods,
- anyone who purchases or trades in such production, exploitation, building or manufacturing of the goods.
Filling of application
- An application for the registration of a geographical indication can be done in three in Form G.I. – 1(A) for a single class and in G.I. – 1 (C) for multiple categories.
- An application shall be made in triplicate in Form G.I. –1(B) for a single class and in G.I. –1(D) for multiple categories.
- Power of Attorney, if required.
- The applicant or his agent shall sign an application.
Contents of application
The application should add the requirements and guidelines for processing a G.I. application as defined below:
- A description showing as to how the geographical indication helps to show the goods as coming from the particular region of the country or territory;
- Providing a geographical map of the area or region in which goods are produced;
- The categories of goods;
- Details of producers;
- An affidavit of how the applicant claims to denote the interest in the G.I.;
- The standards benchmark for the usage or other features of the G.I.;
- The particulars of unique features;
- The written description of the suggested boundary;
- The growth attributes regarding the G.I. relevant to the application;
- Three certified copies of the map of the territory, region or locality;
- Details of special human skill associated, if any;
- Location and the full name of the organisation and association of person;
- Number of producers; and
- Details of examination structures, if any, to monitor the use of the G.I. [Rule32].
The registration process of G.I. in India
- Filling an application and a number is allotted on the receipt of the application.
- After that, the application goes to the examiner for scrutiny
- Examiner scrutinises the application to verify whether it satisfies the conditions of the G.I. Act and the Rules.
- If any deficiencies found through a preliminary examination will be communicated to the applicant by the Examiner.
- The deficiencies need to comply with the limit mentioned in the communication sent by Examiner to Applicant.[Rule31]
- After the compliance of the deficiencies, the Registrar will constitute a Consultative Group of experts to ensure the accuracy of the details provided in the statement of the case. [Rule33]
- Submissions of the applicant would be accepted after the issuance of the Examination Report.
- The application will be admitted and published (within three months of approval) in the Geographical Indications Journal. If no further objection is raised. Rule, 34&38]
- Any person may, within three months, oppose the registration of an application for G.I. after the publication of a Geographical Indication in the Geographical Indications Journal.
- After applying and paying the prescribed fee to the Registrar, this objection
- the period may be extended by a period not exceeding one month.
- The Notice of Opposition/Objection can only be filed before the Registrar of Geographical Indications in Chennai. [Section 14, Form GI-2].
- If no opposition/objection is filed within the specified time or where an opposition/objection is filed, it is rejected. The submission time is over, and the Registrar registers the geographical indication in Part A of the Register.
- The Registrar shall give a certificate sealed with the seal of the Geographical Indications Registry to each applicant and the authorised users after the registration of a geographical indication. The date of filing of the application will be considered the date of registration.
Duration of registration
The validity of a registered geographical indication is ten years and can be renewed from time to time on payment of the renewal fee.
Prohibition of registration of certain Geographical Indications
For registration, the G.I. must fall within the extent of the definition of the expression “geographical indication” as provided under Section 2 (1) (e) of the G.I. Act. In addition, such a G.I. should not fall in the purview of prohibiting acts contained in Section 9, which are as follows:
- the use of which will likely to deceive or confuse; or
- the use of which will be opposed to any law which is in the force at that time; or
- which includes or contains disreputable or offensive matter; or
- which constitutes or contains any element likely to hurt the religious sensitivities of any group or community of the citizens of India; or
- which will contrarily be disentitled to safeguard in a court; or
- which are confirmed to be nonexclusive names or indications of goods and are, hence, not or discontinued to be guarded in their country of origin, or which have come into disuse in that country; or
- which, although belongs to another territory, region or locality in which the goods originate, but dishonestly represent to the persons that the goods originate in another territory, area or locality, whatever the case may be.
Offences and penalties
Chapter VIII of the Act describes specific acts as offences punishable by confinement or with a fine, or with both.
- The penalty for falsification of G.I.s and the situations in which a person uses false G.I. are mentioned in Section 39.
- Selling goods to which false G.I. is used as described in Section 40.
- Increased penalty for succeeding convictions for falsifying, falsifying G.I.s or selling goods with false G.I.s.
- Falsely representing a G.I. as listed in Section 42. Misrepresenting the G.I. as Registered, which has not been registered, is an offence.
- They were inadequately describing a place of business as related to the G.I.s Registry as listed in Section 43.
- Falsification of records in the Register as listed in Section 44.
- No offence in some cases as given under Section 45.
- Immunity of certain persons employed in the day to day activities of the business as provided under Section46.
- Procedure where the invalidity of registration is appealed by the accused as given in Section18.
Conclusion
India is still an agricultural economy even though the GDP contribution of the agricultural sector is about 18 per cent. However, approximately 60 per cent of India’s population still works in the agricultural industry. That is why having a law like the G.I. act, 1999 and making it even stricter and better is crucial to protect farmers’ rights and prevent farmers and workers that work in the agricultural sector.
References
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