This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It discusses in detail the concept of GI tags in the national and international domains.
Table of Contents
Introduction
We live in a world that is changing by the minute, and in this world, it is a challenging task to know for sure the heritage and origin of a particular food or any item of clothing or a beautiful piece of artefact or handicraft. Many special kinds of food items or types of clothing originate from a specific place but unfortunately, some people do not shy away from openly and unethically copying and passing those goods or items from another region to exploit popularity from the quality of those goods or items.
To provide legal rights to the people whose trade or craft become available only due to their geographical factors, the government provides Geographical Indications or GI Tags. It’s common knowledge that the concept of Geographical Indication has been around for centuries, however, the French were the first to develop a proper system to catalogue and recognise different articles/foods that showed individual properties and were associated or found or produced only at a specific region. The system they developed was the ‘appellation d’origine controlee’ which is in use in modern-day and is called the Appellations of Origin.
When we talk about the historical GI systems, the best example is the process of making wine. A GI tag for wine may indicate the particular region where the grapes used have been grown, but not only that, the GI will also designate the type of soil, the particular patch of land in the vineyard as well as the climate of that region.
What is a GI tag
A Geographical Indication (GI) tag is a form of intellectual property, a certification given to certain goods or products from a particular area or state, or country that is unique to a particular geographical region. India, as a member of the World Trade Organization (WTO), enacted the Geographical Indications of Goods (Registration and Protection) Act, 1999 from 15th September 2003.
Like all Intellectual Property Rights, a Geographical Indication is a non-physical asset that composes a legal claim to future benefits through the special rights and privileges attached to it. The GI products are generally agricultural or natural or manufactured items like handicrafts etc. It is an indication or symbol to identify a particular product.
Geographical Indications are an integral part of the development which advances economic interests. These tags are a tool to protect the ownership rights on natural resources and manufactured goods. GI’s cannot be sold, rented, transferred as they are collectively owned by the state. Products having GI tags prevent unauthorized use of products and upgrade financial gain to the producers by exporting the products.
How is a GI tag granted in India?
The Geographical Indication tag is granted as per the Geographical Indications of Goods (Registration and Protection) Act, 1999. The application for GI is open to all the producers of goods or an organization. The application must include the geographical map of the territory or region in the country where the goods are manufactured and the class of goods to which it shall apply. It should be in the prescribed form and a particular fee must be submitted with a signature.
The application will be scrutinized and examined by groups of authorities. It is compulsory to get GI registered to claim any rights in respect of such indication. A product having a GI tag prevents unauthorized use of products and upgrades financial gain to the producers by exporting the products. A GI product price increases in the international market as the exports increase. Section 21 of the GI Act states that registration provides a right to file a suit for infringement. Section 23 certifies that there is prima facie evidence of ownership and validity of GI.
Laws concerning Geographical Indications (GI) and GI tags
The TRIPS Agreement prescribes minimum standards for the protection of GI that all WTO members must provide. Part II Section 3 of the TRIPS provides the standards concerning the availability, scope, and use of GI.
Article 22 of TRIPS deals with the protection of GI. The provision has been enumerated below:
- GIs are indications that identify a good as originating in the territory of a member country where a given reputation or characteristic of the good is attributable to its geographical origin.
- The member countries should provide legal means for the prevention of
- Using or presenting the good to mislead the public from the geographic origin of the good,
- Any such use of that good that constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967).
- The member country shall permit the legislation to refuse or invalidate a trademark for the GI concerning the goods not originating in the territory included, if the use of that good by the member country may mislead the public from the true place of origin.
Article 23 of TRIPS provides additional protection for the GI for wines and spirits. Along with this, there are certain treaties administered by the WIPO which deal partly or completely with the protection of GI such as the Paris Convention, Lisbon Agreement, Madrid Agreement, and the Protocol for the Madrid Agreement, etc.
The legislative measures taken in India in compliance under TRIPS are the enactment of the Geographical Indications of Goods (Registration and Protection) Act, 1999 which came into effect on the 15th of September, 2003 along with the Geographical Indications of Goods (Registration and Protection) Rules, 2002.
Some rather vastly well-known international GI Tags are Gruyere Cheese from Switzerland, Mexican Tequila, Roquefort Cheese from France, Georgian wines, Pinggu Peaches from China among others.
GI tags have been provided in India for many important goods such as Darjeeling Tea, Alphonso Mango, Kanchipuram Silk Saree, Basmati Rice, Kolhapuri Chappal, etc. for many of which the Government of India had to fight the legal battle for decades in the International Courts to get the tag in India.
Position of Geographical Indication (GI) tags in India
As we know, a Geographical Indication (GI) is a name or sign which is used on products to differentiate them from others, because they possess a certain quality, usage of any traditional methods in their production, or enjoy a reputation due to their geographical origin.
GI has dated its first usage in France in the early 20th century known as appellation d’origine controlee (AOC), but it has spread to various countries including India who are members of the World Trade Organisation (WTO) by the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) which got concluded in 1994.
The GI tags in India are issued as per the provisions of the Geographical Indications of Goods (Registration and Protection) Act,1999 which came into force with effect from 15 September 2003, by the Geographical Indication Registry under the Department of Industry Promotion and Internal Trade, Ministry of Commerce and Industry.
Any individual producer, an association of persons, any organization, or authority established by or under the law can apply to get a GI tag and the application moved in such a prospect should be written in the proper format along with a prescribed fee to the concerned authority. A GI tag is valid only for 10 years although it can be renewed from time to time for a further period of 10 years each through every subsequent renewal.
Darjeeling Tea became the first GI tag issued product in India, which was issued to it from 2004 to 2005 and since then, the number of registrations, as well as applications, has increased rapidly.
According to the Indian Government, around 370 GI tags have been assigned to various goods as per Section 2(f) of the Geographical Indications of Goods (Registration and Protection) Act, 1999.
Judicial pronouncements
Geographical indication, like any other intellectual property, is one of the lately discovered but finely benefitted opportunities for the products which have exceptionally different qualities because of their place of origin or manufacturing. Geographical indications are governed by the Geographical Indications Act, 1999, and goods falling under the category of GI are given specific signs and symbols so that the consumers can be well aware of the quality of the product. With the increasing rate of crime, the intellectual rights are also not safe as many sellers with the wrong intention of just earning profit sell the imitated products under the false impression of the original product and poor consumers unknowingly buy those products. There have been various instances where the product is a subject matter of a dispute. In certain cases a manufacturer intentionally adds certain words which belong to the original product and sell them in the market under a wrong impression like in one of the foreign case popularly known as Scotch Whiskey Association case, a whiskey company was restrained from using the word ‘scot’ in its name as it was a deception for the consumers and created a confusion between the original and imitated product, following the same judgment the Delhi High Court held the same in Cartier international B.V. v. Cartier International (2003), Time incorporated v. Lokesh Srivastav and Another (2005), Microsoft corporation v. Yogesh Popat and another (2007).
In one of the landmark cases of Tea Board of India Vs. ITC Ltd (2011). The defendant fraudulently used the word ‘Darjeeling’ for naming one of its premises and misled the customers to believe it was the place of origin which was not true. The Court held that using this name could pose a great threat to the tea business of that place and hence the plaintiff moved an interlocutory application for granting temporary injunction for using the name.
In Comité Interprofessionnel Du Vin De Champagne v. M/s. Chinar Agro Fruit Products (2011), Section 22 of GI Act came into the picture where the defendant was restrained from using the word ‘Champagne’ for the non-alcoholic sparkling drink. The word ‘Champagne’ was registered by the plaintiff under the Geographical Indication (Registration and Protection) Act, 1999. The use of that word led to the infringement of the plaintiff’s right under Section 22(3).
In one of the famous cases of Bikanerwala v. New Bikanerwala (2005) the Court held that using a similar deceptive name for selling the product is an infringement of the right of the plaintiff. The defendant named the shop ‘Agarwal Bikanerwala’ and used to deal in sweets and snacks and on the other hand, the petitioner was using the word ‘Bikanerwala’ since 1981 and got registered in 1992. So, the Court restrained the defendant from selling, advertising any food material under the unique mark/name.
International position of GI tags
Mexico
A founding member of the Lisbon Treaty (1958), Mexico uses Appellations of Origin (AOs) to protect Tequila. Tequila is a spirit that is derived from the heart of a plant called the ‘blue agave’. Its making dates back to the early-middle 16th century. The entire history of the Tequila industry is shaped by the deep-rooted conflicts between the agave farmers, the custodians of agave farming, and the tequila companies. The farmers never received any real representation, moreover, the State does not provide any agency or any platform which is specifically dedicated to GI without intervening in the farmer’s work. Consequently, the product sold as an AO “Tequila” is becoming increasingly different from its traditional standards. Hence, even if the Mexican GI law is formally very strict, the concrete protection on Tequila is an example of how GI rules should not be applied.
France
The Roquefort Cheese has been manufactured since 3,500 B.C. The production was regulated initially in 1411 by King Charles VI. It is one product whose consumers are most likely to be associated with France. In the present day, its production employs more than 10,000 workers. A Protected Designation of Origin (PDO) was granted to this product in 2008, since then it has been very well organized by collective bodies. It also significantly contributes to the development of the low-density population region where it is being produced.
Switzerland
The Gruyere cheese production was started by a community of 150 people in L’Etivaz. It was also the first PDO registered in Switzerland, the aim was to improve the reputation of the cheese and the area where it is being produced. Fortunately, these goals have been very well achieved owing to the well-coordinated associations of the producers and the State.
Conclusion
It is not wrong to say that the Geographical Indication Act, 1999 is still evolving and its roots are still not very strong to protect its infringement. GI laws are new to India and need a strict interpretation to provide full protection against infringement. The place of origin or manufacturing of any product is given due importance under GI because such a place is exceptionally distinguished because of its climate, location, etc. Before registering a GI all the criteria should be kept in mind for its eligibility. From the commercial point of view, every entrepreneur wants to earn more and more profit by selling the products which consumers demand and every customer wants standard quality original product but sellers fraudulently sell imitated goods for the sake of profit. Every country has a different variety of goods which are an outstanding blend of its rich culture, climatic conditions and India being a diverse country in every term has a different state which is rich in their respective culture so it should be kept in mind those products representing the heart of place should be preserved and provided full protection from any kind of infringement.
References
- https://blog.ipleaders.in/geographic-indication-law-in-india/#Cases
- https://www.wto.org/english/docs_e/legal_e/27-trips_04b_e.htm
- https://www.clearias.com/geographical-indication-gi-tags-india/
- https://www.thehindu.com/news/national/what-are-gi-tags-and-how-are-they-awarded/article31667981.ece
- https://www.mondaq.com/india/trademark/898690/geographical-indication-tagging-of-agricultural-products-and-foodstuffs
- https://www.caleidoscope.in/art-culture/geographical-indication-tags-indian-traditional-crafts
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