THE WHAT AND WHY OF GEOGRAPHICAL INDICATIONS : AN INDIAN PERSPECTIVE
The Government of India aims at fostering innovation as one of its sustainable development goals. The vision of India’s National IPR Policy is ‘An India where Intellectual Property stimulates creativity and innovation for the benefit of all’. One such form of protection is afforded to the products that form a part of India’s rich cultural heritage by the way of geographical indications. A geographical indication (GI) is an indication, which may be in the form of a sign or a name, and is used on the goods that have a specific geographical origin and owing to such a place of origin, possesses certain qualities or a reputation.
Articles 22-24, under Section 3 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) deal with Geographical Indications. It was in this agreement that a geographical indication was defined as indications which identify a good as originating in the territory of a Member, or a region or a locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.
India upon becoming a signatory to the agreement, took necessary legislative measures by enacting the Geographical Indications of Goods (Registration and Protection) Act, 1999, which came into effect on 15th September, 2003 and the Geographical Indications of Goods (Registration and Protection) Rules, 2002. Prior to this, i.e. in the absence of a legislation, the Indian Judiciary applied the common law principle of passing-off to protect geographical indications. In the Indian legislation, ‘Geographical Indication’ is defined under Section 2(e). Though it is predominantly based off the definition as provided in Section 3 of Part II of the TRIPS Agreement, some additions may be noted. For instance, while the TRIPS Agreement merely makes a reference to ‘goods,’ the Indian Act classifies such ‘goods’ i.e. it further categorically identifies them as agricultural goods, natural goods or manufactured goods. Further, while the TRIPS Agreement only deals with the aspect of origin, the Indian legislation makes an additional reference to process or nature of origin i.e. while the wording in the former is “… an indication which identifies a good as originating in the territory of …”, Section 2(e) of the Indian legislation identifies goods as “originating, or manufactured in the territory of …”. Thus, while it incorporates the essence of the parent instrument, these minute additions render it more comprehensive.
The article further examines the Indian law and scenario vis-à-vis geographical indications. It identifies and analyses the procedural aspects with respect to protection and penalties, the benefits of registration and provides an outline of the trend of GI registrations.
Procedural Aspects Under Indian Law
Chapters II, III and IV of the Geographical Indications of Goods (Registration and Protection) Act, 1999 [Hereinafter referred to as ‘Act’], deal with provisions relating to the registration of Geographical Indications. An application for the registration of a GI is to be made to the Registrar of Geographical Indications in the form prescribed under the Act read with the Geographical Indications (Registration and Protection) Rules, 2002. Though registration of GI is not mandatory in India, it is advisable as it affords greater precaution and better prevention to the right holder. For instance, the certificate of registration provides a prima facie evidence of its validity and no further proof of the same is required. The period of validity of such registration as provided in Section 18, is 10 years which may continue indefinitely on periodical registration i.e. upon registration a GI is granted protection for 10 years that may further be renewed for a period of 10 years, each time.
Registration of a Geographical Indication confers the various rights on the registered proprietor and the authorised users, such as the right to obtain relief in the respect of infringement of GI and the exclusive right to the usage of the GI in relation to the goods in respect of which GI is registered. The added benefits of registering a geographical indication include the promotion of economic prosperity of producers of goods produced in a geographical territory of origin, and enhances exports as well as tourism with respect to such regions. Further, provisions have been made in the legislation for the protection of unregistered Geographical Indications as well. They are afforded protection under the common law remedy of passing-off under Section 20, clause (2), read with Section 67 of the Act.
Moreover, with special consideration to India’s position as a developing nation which has so much to offer through tradition, GIs garner special importance. Their registration and application will not only encourage quality production, but also satisfy conscious consumers. Even at the Fourth Global Review of Aid for Trade at the World Trade Organization, the panel concluded that the implementation of geographical indications makes a positive contribution to rural development by increasing revenues for the local producers, while simultaneously protecting the diversity of the rural ecosystem.
The legislation also aims to frustrate the instances of infringement and deter any such potential actions by introducing the provisions of sanctions. Chapter VIII of the Act deals with the subject matter of offences, penalties and procedure with respect to Geographical Indications. Penalty varies in accordance with the nature of offences and the provisions account for a variety of situations, such as falsifying or falsely applying a GI to goods, falsely representing a GI as registered, falsification of entries in the register, offences by companies and penalty in case of subsequent conviction. The punishment generally provided is that of a minimum fine of fifty thousand rupees, in addition to a minimum imprisonment term of six months. The Court is however, empowered to reduce the imprisonment period to less than six months, provided that the reasons for the same are recorded in the judgement. The nature of penalties is such that it generously encompasses the plausible means of infringement while also ensuring proportional punishment through judicial discretion, where necessary.
The Reward Of Registration
India is a country of rich cultural heritage which is further complemented by its ideal geographical stretch and conditions. Indigenous goods are a product of continued standards of practices in specific conditions that culminate into authentic products. Their unparalleled value is attributable to their superiority in quality, which is the aggregate of expertise in skill , and suitable geographical conditions. Thus, where unfair competition, misrepresentation, or misstatement with respect to such goods occurs, not only is the significance of the good’s authenticity diluted, but it also amounts to a breach of the consumers’ trust. This is where a GI comes into picture - enabling prevention and protection. A geographical indication may be understood as a right that enables those who have the right to use the indication to prevent its use by a third party, whose product does not conform to the applicable standards. A geographical indication is a public property belonging to the producers of the concerned goods. It cannot be the subject matter of assignment, transmission, licensing, pledge, mortgage or such other agreement, as provided for in Section 24 of the Act. However, when an authorised user dies, his right devolves on his successor in title. Registration thus provides an immortal right - both literally and metaphorically. It’s judicious application will not only benefit the producers via recognition and monetary gains, but will also secure the consumers’ confidence in the quality of products that they receive. For instance, in the jurisdictions in which the ‘Darjeeling’ geographical indication is protected, the producers of the Darjeeling tea can exclude the term ‘Darjeeling’ for tea that is not grown in their tea gardens or not produced according to the standards set out. However, it must be noted that a registered geographical indication does not enable the holder to prevent someone from making a product using the same techniques as those set out in the standards for that indication. the right to use a protected geographical indication, thus, belongs to producers who comply with the specific conditions of production in the defined geographical area. The implementation of GI will increase exchange of authentic commodities, as was the case with Darjeeling tea. This provides assistance in promotion of region-specific quality goods, which will in turn, create a sustainable market system in the long run. Keeping in mind such direct and indirect benefits, the registration of GIs should be encouraged.
India’s GI in Numbers.
For the administration of the Geographical Indications of Goods (Registration and Protection) Act, 1999, the Geographical Indications Registry has been set up with the object to provide registration and better protection of geographical indications relating to goods. The GI Registry is situated at Chennai, Tamil Nadu. The Registry started receiving GI applications for Registration since the 15th of September in 2003. India’s first GI was registered in 2004, making Darjeeling Tea the first GI tagged product in India.
As per the Annual Report (2017-18) of The Office of the Controller General of Patents, Designs, Trademarks, and Geographical Indications, as on March 31, 2018, Registry has received a total number of 613 GI Applications. The report also provides that a maximum number of GI applications have been registered in lieu of handicrafts (including textiles) which were 198, followed by agricultural goods which were 89. Further in accordance with the data available on state-wise registered Geographical Indications, Karnataka has the maximum number of registrations (39), followed by Maharashtra (30) and Tamil Nadu (28).
As per the Registry’s database, there are 370 GI’s that have been granted till date. The most recent registered geographical indications include Kashmir Saffron from Jammu and Kashmir, Thanjavur Pith Works and Arumbavur Wood Carvings from Tamil Nadu, Telia Rumal from Telangana and the Sohrai – Khovar Painting from Jharkhand. In relation to grant of GI to Kashmir Saffron, Navin K Choudhary, the Principal Secretary of the Agriculture Production Department, explained why this is a historic step. On account of the fact that Kashmir saffron is the only saffron in the world that is grown at an altitude of 1,600 meters – thereby giving it characteristic qualities of colour, flavour and aroma – the GI tag will accord it greater prominence in the export market and it would help farmers get the best remunerative price.
This trend of GI applications, for registration and authorisation to use the tag, is a testament to its conceived ease and advantages. Despite being a relatively new intellectual property right that engages a fairly large rural base, the increasing numbers are a welcome sign. To determine the economic rationale of the benefits of GI implementation, the production of such goods may be seen as a collective process. The advantages associated with such cooperation include, economies of scale in the acquisition of information, risk-bearing among the group when facing unanticipated contingencies, mitigation of adverse selection and moral hazard and increased productivity due to a more developed sense of responsibility. In simpler terms, the GI acts as a link to the quality from origin and process, and confirms the same by way of a tag. The producers and manufacturers react positively to increased recognition and sales, which further motivates them to increase and maintain standards. It also protects consumers from being on the receiving end of manipulated, contaminated or misrepresented products; thereby benefitting all stakeholders involved.
In a knowledge-based economy, there is no doubt that an understanding and efficient implementation of Intellectual Property Rights is indispensable in all the areas of human development. Conforming a GI upon a good is implicit of more than just a legal precaution. It gives a sense of recognition and pride to the producers of the goods (who are mostly involved as primary producers, such as farmers), which not only motivates their best efforts, but also lends them credence to seek fair prices. In the long run, it enhances the economic status of the country by increasing tourism, export, etc. It also accords certain economic and political advantages in the international domain, for instance it enables seeking legal protection from other WTO member countries. Therefore, a Geographical Indication tag positively affects various stakeholders (i.e. producers, consumers and industries) alike. As an emerging field in Intellectual Property, its demand continues to grow as a safeguard of quality, reputation and other valuable characteristics attributable to the geographical origin of goods.
This article has been written by Manvee Kumar Saidha. Manvee is a 4th year law student at School of Law, Christ University, Bangalore.