This research is all about the problem faced by any local manufacturer while seeking G.I. protection for its product. Geographical Indication means, “a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. In order to function as a GI, a sign must identify a product as originating in a given place.” [1] It is of utmost importance to protect the rights of the manufacturers the Act provides exclusive rights to the proprietor of the goods. This research will focus on the exclusive rights of the manufacturers and remedy the problems faced by the local manufacturers while registering the G.I. of the product.
Although geographical indications (GI) have a precise definition provided in the TRIPS Agreement. They represent a similarly recent addition to the realm of IPR. However, the method of utilizing names of places or ideogram to signify the G.I. of any product has a record in past. The use of distinct identifiers to indicate geographical origin dates back to the pre-industrial period and is applied to a range of products such as minerals, basic goods, and agricultural items. Blakeney [2001][2] notes that distinctive signs such as Animals (example: panda Beer), natural landmarks (example: mount Fuji sake), notable buildings (example: pisa Silk], heraldic symbols (example: FleurDelysButter], and famous individuals (example: Napoleon Brandy, Mozart chocolates] serve like indicators of appellation of origin while also suggesting a particular quality or reputation[3]. Generally, a G.I. Origin indicator is a mark associated with products that denote their geographical source.
Albeit, there are notable variations in the terminologies found with national legislation & International agreements regarding the issue. The term G.I. is a relatively recent notion brought by the TRIPSAgreement, a number of similar concepts existed prior to TRIPS possessing a distinct definition within the legal framework of intellectual property rights.[4]
Part ii of Trade-Related Aspects of Intellectual Property Rights, under Section 3 provides definition of GIs under Article 22.1 as follows:-
According to the trips agreement, “indications which recognise a good as originating in the territory of a member or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.[5]
The product must originate from a specific place. For example, “Champagne” refers to sparkling wine produced in the Champagne region of France. The qualities or reputation of the product must be linked to its geographical origin. This may include factors such as climate, soil, and traditional production methods. GIs are protected by law in many countries, which helps prevent misuse or imitation by producers outside the designated area.
This protection can enhance the market value of the products and support local economies. GIs can add significant economic value to products, allowing producers to command higher prices. They help preserve traditional practices and cultural heritage associated with the production of certain goods. GIs provide consumers with information about the quality and authenticity of products. The protection of geographical indications varies by country. In other regions, GIs may be protected under trademark law or through specific legislative measures. Overall, geographical indications play a crucial role in promoting regional products and protecting the interests of producers and consumers alike.
What is Geographical Indications?
Geographical Indications (GIs) are a form of intellectual property that identifies a product as originating from a specific geographical location, where certain qualities, reputation, or characteristics of the product are essentially attributable to that origin. GIs serve as an important tool for protecting unique products and promoting their authenticity in the global market. The concept of GIs is rooted in the idea that the geographical environment, including factors such as climate, soil, and traditional practices, contributes significantly to the quality and distinctiveness of certain products. For example, the term “Champagne” is reserved for sparkling wine produced in the Champagne region of France, adhering to specific production methods that reflect the region’s unique terroir. This designation not only protects the product from imitation but also assures consumers of its quality and origin.
One of the primary objectives of GIs is to safeguard the interests of producers in a specific region. By establishing a legal framework for GIs, producers can prevent unauthorized use of their product names, thereby protecting their reputation and economic interests. This protection is crucial in a global market where counterfeit products can easily undermine the value of authentic goods. The World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) provides an international standard for the protection of GIs, encouraging member countries to recognize and enforce these rights.
In addition to protecting producers, GIs play a vital role in preserving traditional knowledge and cultural heritage. Many GI products are linked to centuries-old practices and techniques passed down through generations. By promoting these products, GIs help sustain local traditions and ensure that communities retain their cultural identity. Economically, GIs can significantly enhance the value of local products. By marketing goods with a GI designation, producers can command higher prices due to the perceived quality and authenticity associated with their origin. This economic boost can lead to rural development, job creation, and sustainable livelihoods for communities reliant on agriculture and traditional crafts.
Law Governing Geographical Indications In India
In India, the legal framework governing Geographical Indications (GIs) is primarily established under the Geographical Indications of Goods (Registration and Protection) Act, 1999. This legislation was enacted to comply with the obligations set forth in the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The Act provides a systematic mechanism for the registration and protection of GIs in India. It defines a Geographical Indication as an indication that identifies goods as originating from a specific geographical area, where a particular quality, reputation, or characteristic of the goods is essentially attributable to that origin. This includes agricultural products, handicrafts, and industrial goods.
Under this Act, the registration process is managed by the Geographical Indications Registry, located in Chennai. Applicants seeking to register a GI must provide evidence of the product’s unique qualities linked to its geographical origin and demonstrate that the name has been traditionally used in that region. The application undergoes examination, and if approved, the GI is registered for a period of ten years, which can be renewed indefinitely. The Act also lays down provisions for the protection of registered GIs against unauthorized use or imitation. This means that any person or entity attempting to use a registered GI without permission can face legal action, ensuring that consumers are not misled and that producers’ rights are safeguarded.
Additionally, the Act promotes awareness and encourages the development of GIs by supporting local communities and producers. It aims to enhance the economic value of traditional products while preserving cultural heritage. Overall, the Geographical Indications of Goods (Registration and Protection) Act, 1999, plays a crucial role in protecting India’s rich diversity of products linked to specific regions, fostering economic growth, and promoting cultural heritage through the recognition of GIs.
Importance of Section 21
Section 21 ensures that producers and communities associated with a GI can maintain their rights over an extended period, thus providing them with economic benefits and protecting their cultural heritage.
Producers can renew their registrations encourages producers to invest in quality and marketing, as they can reap benefits from their products over time. Section 21 of the G.I. Act, 1999, establishes a framework for the duration and renewal of GI registrations in India, ensuring that geographical indications are protected over time while also providing mechanisms for their continued validity in response to changing market conditions and producer needs.
Economic Aspect For Geographical Indication Protection
Limited economic research has been conducted specifically on geographical indications (GIs).[6] However, trademarks and GIs share a similar economic justification for their protection, which is rooted in the concept of ‘information asymmetry’ between buyers and sellers in the marketplace, as well as the importance of eminence, conveyed through unique marks, in addressing this asymmetry.[7]
‘Information asymmetry’ refers to the scenario where buyers cannot fully notice all the characteristics they deem important in the product (example: taste, flavor) prior to making a purchase, while sellers possess superior knowledge about those attributes. In other words, ‘information asymmetry’ occurs when buyers cannot accurately evaluate the value of a product through inspection before buying, while sellers can more precisely assess its worth before the transaction.
‘Sui generis’ Protection for Geographical Indications
The geographical indications (G.I.’s) are safeguarded as registered geographical indications’ under a unique system of protection, there may be specific regulations in place to manage instances of conflicting claims to a geographical term. This involves balancing trademark rights on one side with the rights associated with a ‘protected Appellation of Origin’ or a ‘registered Geographical Indication’ on the other.
Depending on the relevant legal framework, various solutions may be available. These can range from prioritizing “registered appellation of origin” or “secured appellation of origin” over conflicting tradeMarks to favouring trademarks over competing “registered Geographical Indications” or “protected Appellations of Origin”, with the potential for an intermediary solution allowing the coexistence of the competing rights. The decision to grant priority to a trademark over a ‘secured appellation of origin’ or a ‘registered geographical indication’ in cases of conflicting claims is influenced by several factors. It may be significant whether the trademark was registered or used in a bona fide way prior to the protection of the Geographical Indications, also if the trademark has been in use for an extended period as well as has gained a reputation as well as recognition. While evaluating this scenario, decisions regarding the relationship between Trademarks & ‘protected Appellations of Origin’ or ‘registered Geographical Indications’ are made on a case-by-case basis.
Benefits of the G.I. Tag
Boosting exports contributes to economic growth. The demand for goods with geographical indication tags increases in both domestic and international markets, promoting financial well-being for producers. This expansion of economic wealth is encouraged. Consumers can obtain products with desired qualities and are assured of their authenticity. Trade and tourism are stimulated. The unauthorized use of goods marked with geographical indications by others is curtailed. Misconduct is restricted, preventing the sale of inferior products in the marketplace.
Challenges faced by GI tag holders
- GI status remains underutilized after registration—many GI products do not capitalize on their GI status as a marketing tool and struggle to stand out from similar offerings. Numerous GI products lack effective strategies or plans to take advantage of their GI designation post-registration. They often do not display the GI logo or common symbols to signify their origin and quality. Additionally, they may lack sufficient marketing channels or platforms to connect with potential consumers or buyers.[8]
- Low consumer awareness of GIs—many consumers are unfamiliar with the significance and advantages of GI products, as well as the benefits of purchasing them. They often lack knowledge on how to recognize or confirm the authenticity and quality of GI products. Additionally, there is insufficient information or education available regarding the cultural, social, and environmental dimensions of GI products.[9]
- Insufficient efforts in brand development and visibility—many GI products lack strong brand identities and do not allocate resources for marketing and advertising to enhance their market presence and outreach.[10]
- Disorganized producers in marketing—many GI products are made by small, dispersed producers who lack the resources and expertise to market their products effectively and efficiently.[11]
Case Laws on Geographical Indications
In the India–US Basmati Rice dispute[12], the controversy centred on the domain name “basmatirice.com,” which was utilized by an Indian company not connected to the Basmati rice Geographical Indication. The court determined that “Basmati” is an established GI, and its unauthorized use in the domain name could lead to confusion and constituted infringement.
In the case of Khadi & Village Industries Commission vs. KK Sharma (2022)[13], the dispute involved the ownership of the Geographical Indication “Khadi.” The KVIC took legal action against KK Sharma for marketing apparel labelled as “Khadi” that was not authentic. The court issued an injunction in favour of KVIC, highlighting that the unauthorized use of the term “Khadi” by sellers misled consumers and undermined the reputation of the GI.
Conclusion
In conclusion, to protect and preserve Geographical Indication (GI) products, producers need access to appropriate legal knowledge and guidance. This will enable them to defend their products against any illegal infringement or misuse. By offering essential legal assistance, the government can help maintain the longevity and integrity of these valuable items. Raising consumer awareness about GI and enforcing strict regulations to tackle the production of counterfeit goods is essential. Through fair pricing, international marketing, tax incentives, and legal support, the government can effectively promote and safeguard G.I. products, fostering their growth, sustainability, and recognition worldwide.
[1] https://www.wipo.int/ (https://www.wipo.int/web/geographical-indications, WIPO)
[2] Blakeney-2001.
[3] Rangnekar, 2004; Pg. 13./ (https://onlinelibrary/wiley.com//doi/10.1111//j.1747-1796.2001?.tb00131.x, n.d.)
[4] Correa, 2002; Pg. 2./ (https:://www.researchgate.net//publication/265104739_Protection_of_Geographical_Indications_in_Caricom_Countries//, n.d.)
[5] Article 22.1; Part ii U/s 3 of the TRIPS Agreement/ (https:/www.wto.org/english/docs_e/legale_//27-trips_04b_e.htm., n.d.)
[6] The primary laws governing consumer protection include: i. The Consumer Protection Act of 1986,& ii. Section 36-A to36-E of the Monopolies and Restrictive Trade Practices(MRTP)Act of 1969. The aforementioned sections in later Act relate to unfair trad practices & were added to the MRTP Act through an amendment Act in 1984,taking effect from 1August1984. (https:/www.mca.gov.in//Ministry/actsbills/pdf//The_Monopolies_and_Restrictive_Trade_Practices_Act_1969.pdf/, n.d.)
[7] At its core, the objective of passing off asserts that ‘No one has the right to misrepresent their goods as those of someone else.’ The main objective of a passing-off action is to safeguard the name, reputation, and goodwill of traders or producers from any unjust attempts to benefit from them. Although India, similar to many other common law nations, lacks a specific statute addressing unfair competition, many instances of such unfair practices can be addressed through actions against passing off.
[8] Sharma and Kulhari-2015
[9] Sharma and Kulhari-2015
[10] Sharma and Kulhari-2015
[11] Anson-2012
[12] Ind – US Basmati dispute-2007; Patent No.:- US5663484 A.
[13] CS(COMM) 244/2021 & I.A. 6811/2021
Author: Akshay Anant Vishnu, Advocate practicing at Bombay High Court Nagpur Bench & LL.M Student in the Department of Post Graduation of Law at Nagpur
