This article is written by Jeffy Johnson, currently pursuing B.A. LLB (Hons) from School of Law, CHRIST (Deemed to be University). This is an exhaustive article which deals with the Geographical Indication in India and it’s the registration process.
Table of Contents
The GI tag is also known as the Geographical Indication tag. Geographical Indications is a sign provided to certain commodities or products based on their geographical locations which include the place of origin, region, town or country. The Darjeeling Tea is India’s first product to get the geographical indication tag. This tag is considered as a certification which includes whether the product is produced according to traditional methods and certain specific qualities which provides reputation based on geographical origins. This facilitates that no other authority other than authorised users are permitted to take the popular product name.
In similar terms, it is an indication that originates from a definite geographical territory. It possesses a particular character, reputation & special attribute or quality. It holds a sense of trust and authenticity. According to the World Intellectual Property Organisation (WIPO), a geographical indication is a distinctive sign which has a specific origin and which showcases the qualities or traits that are possessed by the good. The standards of protection and safeguarding for Geographical Indication took its forms from the Paris Convention for protection of Industrial Property, 1883. It includes trademarks, industrial designs, trade names, service marks, geographical indications and so on. It is also followed by the Madrid Agreement for Repression of False or Deceptive Indications of Source of Goods, 1891. These international instruments primarily focus on geographical indications.
Geographical indication regulates those who have the right to make the use of the indication. It prevents any third party from taking advantage of the product. The protection of GI does not allow the holder to disregard any other individual from using the product. The protection facilitates the right over a particular sign that provides a specific indication. A geographical indication is regulated and accommodated under Intellectual property rights. This is covered under the Paris Convention for the Protection of Industrial Property. Looking into the international realms the geographical indications are governed by the World Trade Organisation (WTO) that is Agreement on Trade-related aspects of Intellectual Property Rights (TRIPS). Concerning the Indian subcontinent, the administration of geographical indications is controlled by the Geographical Indications of Goods (Registration and Protection) Act, 1999 which came into force in September 2003.
The main Approaches used to protect Geographical Indication are as follows :
- Focus on business practices, consisting of administrative product approval schemes.
- Usage of certification marks
- Special regimes of protection (sui generis systems)
Geographical Indications of Goods can be explained as the aspect of industrial property. It refers to GI indicating a country or place which indicates the origin of the product. Article 1(2) and 10 of the Paris Convention for the Protection of Industrial Property deals with the geographical indication which is covered as an element of Intellectual property rights. It ensures quality and distinctiveness as the product’s main attribute is the place of origin. GI is also covered under TRIPS Article 22 to 24. These tags act as a very strong device in safeguarding national property rights. Examples: Agra petha, Kanchipuram silk, Darjeeling tea, Basmati rice in India etc.
Trademark and Geographical Indication
The main difference between the two is that a trademark is a sign which is used by a business concerned to differentiate the services or products from their competitors. Whereas, Geographical Indication acts like an indicator which provides the origin of the commodity or product. In the case of a trademark, it can only be used by one entity. Any entity can use geographical indications from that particular place of origin. A deceptive geographical indication can be identified as a trademark and render trademark deceptive. The reverse of this process is not practical. A geographical indication cannot claim colour features, but a trademark can. Lastly, a geographical indication can be a politico-geographical name that is the name of a place. Trademark can be a letter, a word, numerals or a combination of letters or a hologram and so on.
Legislation governing Geographical Indication
India has adopted a sui generis system concerning geographical indication. Geographical Indications of Goods (Registration and Protection) Act 1999 operationalises the structure required by Geographical Indications Goods (Registration and Protection) Rules, 2002. The term “Geographical Indication” is defined under Section 2(e) of the Rules. It means an indication which identifies a commodity or a product as a natural good, agricultural good or manufacturing good concerning the place or region. The quality of these goods is derived from the geographical place of its origin.
There are three aspects concerning the Geographical Indication given before registration, they are as follows:
- Providing the producer with insight on the need for registration and being recognised as an authorised.
- Highlighting the authenticity of a registered good.
- Ensuring the quality of the good.
Section 11(1) of the Act explains who can file for geographical indications. It can be filed by the producers or organisation, an association of persons or any authority. This entity should show an interest in the concerned producer of the good. And finally should be willing to register the good. Section 17 of the Geographical Indications of Goods Act, 1999 explains an authorised user the producer of a good is qualified to be recognised as an authorised user.
Registration of Geographical Indication
Section 12 of the Geographical Indications of Goods Act lays down the rights conferred by registration. Firstly, it gives an exclusive right to make use of the geographical indication concerning the good. Secondly, in case of an infringement, a remedy can resort to this Act. These rights are not absolute; they are subject to certain conditions such as variation, blank space, limitation and restraining.
The following are the steps involved in the registration
- Filing of the Application
- Preliminary Scrutiny
- Issue of Show Cause Notice
- Opposition to Registration
- Corrections and amendments
- Duration, Renewal and Restoration
- Appeal to the Intellectual Property Appellate Boards
Elaborating upon these steps, step one is about the filing of the application. The application for registration shall be made in triplicate. The applicant should sign it, and with that, there should be a statement of the case. There should also be an affidavit stating the interest in the good. The contents of the application are explained in Section 11(2). The particulars include the origin of the good, class of the good, geographical map of the region or place of the good and finally the details of the applicant. The form for registration is available on the website of the Geographical Indications Registry. The second step and third step of preliminary scrutiny and examination respectively are mentioned under Section 11(5) to (7). The examiner scrutinises the application to check if there are any errors or false information.
If there are any such errors, the applicant can verify it and rectify the mistakes within one month. The authenticity of the application is checked by the Registrar in consultation with experts, which is a group of not less than seven representatives. The fourth step is the issue of show-cause notice that is explained under Section 12, the Registrar checks the application and raises objections. If the applicant finds these objections unreasonable then he or she may appeal. The fifth step is mentioned in Section 13, which is an advertisement; the geographical indication which is approved is published in the Geographical Indications Journal. “Opposition to the registration” the sixth step is under Section 14. The opposition should be filed within three months from the time it is published in the Geographical Indications Journal. The copy of such opposition can be provided to the applicant as well. This is an order to make any counterclaims by the applicant if any, as a justification. The Registrar will give the appropriate time for both the parties to prove their sides.
The Registrar allows correction to be made by the applicant in case of any errors as a part of counterclaims and as an answer to the opposition. The seventh step is that the Registrar allowing corrections and amendments are allowed under Section 15. The most important step is the registration that is given in Section 16. Once the application is accepted, the Registrar registers the GI. The Registrar shall issue the authorised user with a certificate having the seal of GI’s registry in Form-2 as per Rule 55 of the Geographical Indications of Goods (Registration and Protection) Rules, 2002. Section 18 explains the duration, renewal and restoration. Finally, the appeal to the Appellate Boards. It says that if any person feels aggrieved, they may seek remedy under the Intellectual Property Appellate Board (IPAB).
It is essential to understand the role of a registered proprietor, authorised user and a producer concerning the geographical indication. Firstly, a registered proprietor can be any producer, organisation or association or authority that is recognised as a registered proprietor under law. Their names should be duly filled in the Register of Geographical Indications. Secondly, an authorised user is simply the producer of the good. He or she should apply for registration along with the prescribed fee. Lastly, a producer can be a producer of an agricultural good, natural good, or industrial goods.
The process of registration is not mandatory. Registration allows legal protection and it facilitates infringement in case of any violation. Only a registered proprietor and authorised users can carry out any suit in matters of infringement. The authorised user owns the exclusive right to make use of the geographical indication. A geographical indication can be said to be infringed in the following scenarios. Firstly, when an authorised user makes use of the indication in a manner that it misleads the public concerning the origin of the good. Then, when it leads to unfair competition or practices. And at last, using the GI tag as a false representation in the public domain.
The validity of the GI Tags can be ascertained with the aid of the TRIPS agreement. Firstly India is a participant and member of the WTO. It has enacted the Geographical Indications of Goods Act, 1999. The first Indian product to get the GI tag was the Darjeeling Tea in 2004. The validity of geographical indication is for 10 years. It can be renewed after the completion of the validity period which is 10 years.
The advantages of geographic indication are as follows: Firstly, it provides legal protection to the product. Then, it prohibits any unauthorised use by the user. Furthermore, it aids and helps consumers to get quality products that meet the standard of all. Finally, it promotes economic growth and increases the demand for the product both at national and international markets. The other benefits include that it helps producers to obtain the title of premium goods and avail proper price in the competitive market. It prohibits malpractice or false practice and avoids low-quality products in the market. It allows the customers to enjoy the benefit of premium goods.
The key merits of having a GI tag are as follows :
- Boosts export in the economy
- Growth of economic wealth
- Deters misuse
- Increase in tourism and trade
In the current situation, there are many producers and there is much application being filed for the GI tag. To provide such an indication, it requires a lot of hectic process assessing various parameters. The main quality of the GI tag is its uniqueness and it prevents any kind of exploitation by a third party. The exclusive right is vested over the authorised user by the virtue of the geographical indication given to the good. Geographical indication gives due credit to the quality of the good. It prevents any kind of false representation or exploitation. As regulated by the Geographical Indications of Goods Act, 1999 all the GI tags stay protected and they are no longer vulnerable. In cases of any infringement, the Geographical Indications of Goods Act will give the remedy. Geographical Indication gives a strong relationship between the good and its geographical place of origin.
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