This article is written by Shubhangi Sharma, a 5th-year student of BA LLB in Lloyd Law College, Greater Noida. The article discusses Geographic Indication law in India.
Table of Contents
What is Geographic Indication?
A geographical indication is a sign used on products that has a specific geographic origin and includes the qualities or reputation of that origin. A geographical indication is given mainly to agricultural, natural, manufactured, handicraft arising from a certain geographical area. Geographical indications (G.I.) are one of the forms of IPR which identifies a good as originating in the respective territory of the country, or a region or locality in that particular territory, where a given quality, reputation or other characteristic related to good is essentially attributable to its geographical origin. The relationship between objects and place becomes so well known that any reference to that place is reminiscent of goods originating there and vice versa. It performs three functions:
- First, they identify the goods as to the origin of a particular region or locality;
- Secondly, they suggest to consumers that goods come from a region where a given quality, reputation, or other characteristics of the goods are essentially attributed to their geographic origin;
- Third, they promote the goods of producers of a particular region. They suggest the consumer that the goods come from this area where a given quality, reputation or other characteristics of goods are essentially attributable to the geographic region.
G.I. is a kind of sign used for goods that have a specific geographical origin and possess qualities or a reputation that are due to that particular place of origin. Basmati rice and Darjeeling tea are examples of G.I. from India. Article 22 of the TRIPS Agreements define a geographical indication as “signs that originate in a member or identify a good location in an area or locality where a given quality, reputation, or speciality is assigned to its geographical location Is given Is essentially acceptable”.
As a result, India was implemented in 1999 when the TRIPS Agreement was incorporated as a member state of the Sui-Genis law for the protection of geographical Indication. The object of the Geographical Indicators Goods (Registration and Protection) Act, 1999, has three folds:
- By specific laws governing the geographical Indication of goods in the country, which can adequately protect the interests of the producers of such goods,
- To exclude unauthorized persons from misuse of geographical signals and protect consumers from fraud, and
- Promoting Indian geographical bearing goods in the export market.
A registered geographic sign prohibits in any way the use of a geographical insignia which indicates in the designation or representation of goods that such goods originate in a geographic area. For example, Basmati rice and Darjeeling tea are examples of G.I. from India. The connection between the goods and place becomes so much recognized that any reference to the place reminds those specific goods being produced there and vice-versa. Some of the Examples of Indian geographical indications which are registered in India are:
- Basmati rice
- Darjeeling tea
- Banaras Brocades and Sarees
- Coorg orange
- Kolhapuri chappals
- Kangivaram sarees
- Agra Petha
History of Geographical Indication
Governments are protecting trade names and trademarks used in context to food products identified from a particular region, which until the late nineteenth century, laws were used or passed against inaccurate trade descriptions, which Usually protect against suggestions that have a certain origin, quality, of the product. , or association when it does not. In such cases, the competitive freedom that arises from the grant of a monopoly of use on a geographic indication is justified by governments for consumer protection benefits or producer protection benefits.
One of the first G.I. systems used in France since the early part of the twentieth century is known as the Appellate d’Orgine Controloli (AOC). Items which meet geographic origin and quality standards can be approved with a stamp of government that serves as the official certification of the product’s origin and standards to the consumer. Examples of products that have such ‘appellation of origin’ include Gruyère cheese (from Switzerland) and several French wines.
Among the major developing economies, India has a quick and efficient G I tagging mechanism.
Geographical indications have been associated strongly with the concept of Terrero and as a unit with Europe, where there is an existence of a tradition of linking certain food products with particular regions and its origin. India has put in place a Sui Generis system of legislation for G.I. security as well as G.I. protection in particular. “Sui Generis” can be termed as of its own kind and which involves laws which are recognized nationally. The laws relating to the preservation of G.I.s in India are the ‘Geographical Indications (Registration and Protection) Act, 1999’ (G.I. Act), and the ‘Geographical Indications (Registration and Protection of Goods) Rules, 2002 (G.I. Rules). India enacted its G.I. law for the country to enforce national intellectual property laws in compliance with India’s obligations under TRIPS. Under the G.I. Act, under the G.I. Act, since 15 September 2003, the Central Government has established a Geographical Indication Registry in Chennai, with the jurisdiction of Pan-India, where rights holders can register their G.I.
What role does WIPO play in protecting G.I?
The Uruguay Round of GATT negotiations began in 1986, at the same time as India’s development policy-making process was in a watershed. As a paradigm shift in its policy by the time India launched its large-scale economic reform package in 1991, the Uruguay Round of negotiations were going well, paving the way for Margakesh in 1994 and world trade. Organization established. The NDA remained cautious and somewhat dysfunctional player during the early years of the Uruguay Round of negotiations, given its longstanding legacy of growth strategy and inward protectionist trade policy.
However, in Doha, India wanted to patronize other products beyond wine and spirits under the Doha Geographical Indication (G.I.).Many countries wanted this high level of security to be seen as a negotiation for other products, as they see a higher level of security to improve their products by separating their products from their competitors more effectively and They are “belittling” other countries. Conditions. Some others opposed the move, and the debate includes the question of whether the Doha Declaration provides a mandate for negotiations. Those opposing the expansion argue that the current (Article 22) level of protection is sufficient. They warn that providing augmented security will be a burden and disrupt existing legitimate marketing practices. India, along with a host of other similar countries, pressed ‘expand the scope of Article 23’ to cover all categories of goods. However, countries such as the United States, Australia, New Zealand, Canada, Argentina, Chile, Guatemala and Uruguay are strongly opposed to any ‘expansion’. The ‘expansion’ issue formed an integral part of the Doha Work Program (2001). However, as a result of the wide divergence of views among members of the World Trade Organization, there has not been much progress in negotiations, and implementation remains an ‘outstanding implementation issue’.
Need for Geographical indications
Given its commercial potential, G.I.’s legal protection assumes great importance. Without proper legal protection, competitors who have no legitimate authority over the G.I. can ride free on its reputation. Such unfair trade practices lead to loss of revenue for G.I. right holders and also confuse consumers. Furthermore, such practices may ultimately disrupt the goodwill and reputation associated with a geographical indication.
What is a “generic” geographical indication?
If a geographical term is used as a designation of a type of product rather than an indication of the place of origin of that product, the term does not serve as a geographical indication. Where a certain country has occurred at a certain time, that country may feel that consumers have understood a geographical term that once stood for the origin of the product.
Benefits of Geographical Indications
The organizations or companies who register their geographical indications enjoy various advantages from the registration, including:
- Registered geographical indications have the exclusive right to access or use G.I.’s products during the business.
- AuthorizedAuthorized users enjoy the right to sue for infringement.
- It provides legal protection to geographical signs in India.
- Prevents unauthorized use of registered geographical indications by others.
- It provides legal protection to Indian geographical signals which in turn promotes exports.
- It promotes the economic prosperity of producers of goods produced in a geographical area.
- A registered owner can also approach for legal protection in other WTO member countries.
- It provides legal protection to the respective goods in domestic as well as in international markets.
What are the subject matters which are not registrable under geographical Indication?
For getting registration, the indications should fall within the purview of Section 2(1) of Geographical Indication Act, 1999. When this happens, it must also meet the provisions of Section 9, which prohibits the registration of a geographical indication.
- The use of which would cause confusion or confusion; or
- The use of which shall be contrary to the time of enactment of any law; or
- Which includes or is libellous or indecent matter; or
- Which is likely to involve or cause force injury at any time; Religious sensitivity of any class or class of citizens of India; or
- Which would otherwise be destroyed for protection in a court; or
- Those determined to indicate common names or objects and, therefore, to be preserved in their country of origin or which are not in use in that country; or
- However, this is actually true as the area or locality in which the goods originate but misrepresents the individuals that the goods originate in another area, region or locality as the case may be.
Rights granted to the holders
- Right to sue: The exclusive rights have been granted to the person who is protected under geographical indication act and, therefore, can be inherited, gifted, sold, licensed, entrusted or mortgaged. The holder of geographical Indication has a type of property that he can use subject to certain conditions and take legal action against a person who uses his invention without his consent. Does and can receive compensation against real property.
- The right to grant license others: The holder has the right to transfer a license or grant license or enter into any other arrangement for consideration regarding their product. A license or assignment must be given in writing and registered with the Registrar of geographic indications, for it to be valid and legitimate.
- Right to exploit: Authorize user exclusive right to use geographic Indication with respect to geographic goods for which the geographic Indication is registered.
- Right to get reliefs: Registered Proprietors and authorized Users or Users have the Rights to obtain relief in relation to the violation of such geographical Indication.
Who can apply for geographical indication registration?
Any person, manufacturer, organization or authority established by or under the law may apply for the registration of Geographical Indication of their product.
- The respective Applicant should represent the interest of producers.
- The Application should be in the prescribed form in writing, which mentions each and every detail about the product.
- The Application should be addressed to the Registrar of Geographical Indicators along with the prescribed fee for the registration of the product.
Whom to apply?
The Application must be submitted to the Registrar under the Act, the Controller of Patents, Designs and Trademarks who are appointed under sub-section (1) of section 3 of the Trademarks Act 1999 shall be the Registrar of Geographical Indications. He shall be assisted by the respective number of the officer, which are appointed by the central government as they may think fit.
A full modern patent office and the country’s first geographical indication (G.I.) registry in Chennai which is really a good step in this field. The Registry will further supplement this by meeting the requirements outlined in the Act. Every application should be filed in Office Registry of Geographical Indication within the territorial boundaries of the country or region or locality in the country where the geographical indications is situated.
Whom to consider an authorized user?
The authorized user is:
- The manufacturer of the goods can apply for registration as an authorized user.
- It must be in relation to a registered geographical indication.
- He should apply in writing with the prescribed fee.
Whom to consider as the registered proprietor of a geographical indication?
The registered proprietors of Geographical Indications are:
- A person, manufacturer, organization or association established under law or legislation may be a registered owner.
- Their name must be entered in the Register of Geographical Indicators as there are registered owners for the Geographical Indication.
Registration process of Geographical Indications
Step 1: Application filing
Please check if the Indication falls within the definition of Section 2(1)(e) of Gl Act.
The association of individuals or producers or any association or authority should represent the interest of the producers of the goods concerned and file an affidavit as to how the Applicant claims to represent their respective interests.
- Applications must be made in triplicate.
- The Application must be signed by the Applicant or his agent and must be accompanied by a description of the case.
- Describe the special features and how those standards are maintained.
- Three certified copies of GI-related field maps.
- Description of the inspection structure if there is an area for regulating the use of G.I.
- Provide details of all applicants with the address. If there are a large number of manufacturers, then collective reference applications for all producers of goods and G.I. should be made. If registered, it should be indicated accordingly in the register. The Application must be sent in a respective address in India.
Step 2 and 3: Preliminary Examination and Examination
- The examiner will check the Application for any deficiencies.
- The Applicant should take measures in this regard within one month of communication.
- The content of the case description is evaluated by an advisory group of experts who will master the subject.
- Furnished will ascertain the correctness of the description.
- After that, an examination report will be issued.
Step 4: Show cause notice
- If the Registrar has any objection to the Application, he shall file such objection.
- Applicant must reply within two months or apply for a hearing.
- The decision will be duly communicated. If the Applicant wants to appeal, he can request it within a month.
- The RegistrarRegistrar also has the right to withdraw an application, if it is mistakenly accepted, after giving it on the occasion of a hearing.
Step 5: Publication in Geographical Indication Journal
Every Application, within three months of acceptance, will be published in the Geographical Indications Journal.
Step 6: Resist Registration
- Any person opposing the G.I. application, published in the journal, can file a notice of protest within three months (another month upon request which is to be filed before three months).
- The RegistrarRegistrar will provide a copy of the notice to the Applicant.
- Within two months, the Applicant will send a copy of the counter statement.
- If he does not do so, he is believed to have dropped his Application. Where a counter-claim has been filed, the RegistrarRegistrar will serve a copy on the person giving notice of the protest.
- Thereafter, both parties will lead their respective evidence through affidavits and supporting documents.
- After this, the date of hearing of the case will be fixed.
Step 7: Registration of Application
- Where an application for G.I. has been accepted, the RegistrarRegistrar will register the Geographical Indication. If the date of filing the Application after being registered will be considered as the date of registration.
- The RegistrarRegistrar will issue a certificate to the Applicant with the seal of the Geographical Indicators Registry.
Step 8: Renewal of Application
A registered G.I. will be valid for 10 years and can be renewed on payment of a renewal fee.
Step 9: Additional Security for Notified Goods
An application can be made to the RegistrarRegistrar for respective goods which are notified by the Central Government for additional protection for the registration of geographical Indication in Form GI-9, there will be three copies of the case details and three copies of issued notification.
The Application will be made jointly by the registered owner of Geographical Indication in India and jointly by all the producers of Geographical Indication.
Step 10: Appeal
Any person who is aggrieved by an order or decision which may prefer an appeal to the Intellectual Property Appellate Board (IPAB) within three months.
Infringement of geographical Indication
A registered geographical indication is violated by a person who is not a registered proprietor or authorized user, uses such a sign on the goods or suggests that such goods originate in another geographic area, which confuses someone other than the actual place of goods public. A geographical indication of the trademark also infringes upon any use that constitutes an act of “unfair competition”, detailed explanation of 1 and 2 of Section 2(b). This provision seeks to give effect to Article 22(2)(b) of the TRIPS Agreement, which requires members to “provide legal means for interested parties to prevent any use that the Article 10bis of the Paris Convention (1967). A geographical indication is also violated by a person who is not a registered proprietor or authorized user, who uses another geographical indication for the goods, which is actually true as to region, or locality from where the goods originated and publicly misrepresentation that goods originate in a region, or a locality to which such registered geographical indicators belong.
Article 22 (4) of the TRIPS Agreement states that the preservation of the geographical Indication of a trademark must be enforced even if the G.I. “is truly true as to the area, region, or locality in which the goods are in another territory” is generated “.
Remedies for infringement of Geographical Indications
Remedies relating to infringement of geographical indications are similar to remedies related to trademark infringement. Similarly, under the (Indian) Geographical Indicators Goods (Registration and Protection) Act, 1999, falsification of a geographical indication. Remedies which are available for conservation of geographical indications may be broadly classified into two categories:
(i) Civil remedies
Injunctions include temporary injunction and permanent injunction. An injunction is granted for the protection of violations of related items, documents or other evidence in respect of the subject of the suit. An injunction is granted for restricting the defendant from disposing of or dealing with his products which may adversely affect plaintiffs’ ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff as compensation of damage. The aforesaid remedy of injunction is more effective and can prevent greater harm to the plaintiff. Or other peculiar remedies that may eventually be given to the plaintiff.
The remedy of damages or account of profits in the form of compensatory damages is available to prevent infringers from infringement. Damages (other than nominal losses) or accounts of profits may be ruled out Where the defendant satisfied the court that he was unaware and there was no reasonable basis for that Assuming that the plaintiff’s geographical Indication was registered when he was engaged in using it; And when he became aware of the existence and nature of the geographical Indication, he stopped using it.
- Delivery of the infringing labels and indications containing products
It is in the court’s discretion to order the infringer to deliver up infringing labels and indications for destroying.by taking relevant circumstances into consideration the court may or may not order for such remedy. All the mentioned remedies are also available for the action of passing off. The actions of Passing off are initiated against the infringement of unregistered geographical indications.
(ii) Criminal Treatment.
Criminal remedies are more effective as compared to civil remedies because the former can be disposed of quickly. Pendency of civil suits does not justify a stay of the criminal proceedings which involve the same question. Since criminal proceedings directly attacking the violator’s honour and social status In some cases he comes forward for the Settlement of the matter out of court to save their reputation. Chapter VIII of the Act deals with offences and punishment for such crimes. The Act has penal provisions for violation of various provisions related to Geographical indications which are discussed below:
- Falsifying and incorrectly applying geographical indications to the goods.
- Selling goods to which false geographical indications apply.
- Misrepresentation of a geographical indication in registered form.
- Improperly describes a place of geographically connected business indication Registry.
- Falsification of entries in the register.
The punishment granted for the infringement offences varies from six months to three years imprisonment and a fine of not less than rupees fifty thousand but may extend to rupees two lakh. However, the court for adequate and special reasons in writing may grant lesser punishment.
‘King of Fruits’ means mangoes from Banganapalle received G.I. tag in the year 2017. The government-fixed logo features a yellow-coloured shiny fruit around which the tagline says “Banglapple Mango from Andhra Pradesh,” showing farmers with images of a man and a woman. From now on anyone has to apply to become the first authorized user to sell or produce and this will require a No Objection Certificate (NOC) from the Commissioner of Horticulture Development Agency, Government of Andhra Pradesh, Department of Horticulture.
The fruit is also known by many types of sages such as Beneshan, Banahan, Benishan, Chapati, Safeda, Banganapalli, Banginapalli, Banganapalle, etc. The main attraction of the fruit is that it can maintain its quality in cold storage for three months. Documents submitted to the Registry stated that ‘the prominent feature of Banganapel mangoes is that they have very light spots on their skin, stones are diagonal in shape and have very thin seeds, which have sparse and soft fibres.
The government also called the original centre of Kurnool district, which includes Nandyal Mandal in Banganapalle, Penam and Telangana and Khammam, Mahbubnagar, Rangareddy, Medak, Adilabad districts. According to an affidavit furnished in 2011, the then Commissioner of Andhra Pradesh, Rani Kumudini said that about 7,68,250 families were involved in the production of Banganapalle mangoes. An estimated 24.35 lakh metric tons of mangoes were grown every year in Andhra Pradesh, and around 5,500 tons of Banganpal mangoes were exported annually to countries like the U.S., U.K., Japan and the Gulf countries.
In November 2017, the West Bengal State Food Processing and Horticulture Development Corporation Limited registered G.I. as Ras Banglar Rasogola. It was reported that Bengal won the dormant war between Odisha and Bengal, which would own the famous dessert. The legal battle for G.I. registration started when objections to G.I. registration were lodged, and it was said that this famous dessert originated at Jagannath temple in Puri, Odisha. An application to remove the registration of G.I. status was filed on February 2018. Meanwhile, G.I. Registry in July notified that Odisha registered G.I. as ‘Odisha Rasgola’, after which several reports were released. Odisha did not give up in the race but won one. It is very important to note that the G.I. The registry has not registered the word all Rasogola / Rasgola ‘. It has prefixed two words specifically for G.I. tag, one is ‘Banglar’, and the other is ‘Odisha’. To say that ‘rasogola / rasgola’ is a general term, which any person can use in his trade and business. Thus, as far as the law is concerned, neither of the two states has got a monopoly on the word ‘Rasogola / Rasola’. Therefore, it is free to sell sweets to anyone in the trade as Rasgulla / Rasgola or any other synonym. What is prohibited is the use of the words “Odisha rasgola” and “Benglar rosogola” by anyone other than authorized users ‘under the law.
From the above case, we can conclude that a registered G.I. tag prohibits the holder from using the registered mark of G.I. or its name in any product which is similar to or misleading the registered product. It is possible. It may not be the same as a registered product, but it may have a registered name. Since the adoption of the TRIPS Agreement, there has been increased awareness of the need for adequate protection of geographic signals for all products. In addition, the negotiations by the World Trade Organization in the field of industrial and agricultural products demonstrate the increasing importance of increasing the level of conservation of geographical signals for wines and spirits for all products. Nations have to understand the fact that protection for G.I.s is best provided under national laws because it is not the provisions of the treaty but the actual national laws that provide protection in relation to G.I.s. Such protection is an invaluable marketing tool and an added value for exports because it increases the likelihood of market access for such goods. The G.I. tag is an essential component for creating and maintaining abstracts and originality of the product of certain essentials and characteristics. India is not far behind to legally pursue this aspect of intellectual property.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.