Blog

Geographical Indication-An unexplored IPR

The IPR i.e. intellectual property rights include various types of properties such as trademark, copyrights etc. one of such property which is present in this ambit of IPR is geographical indications or famously known as G.I. 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. They  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. Article 22 of TRIPS AGREEMENT 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”. Geographical indications are typically used for agricultural products, foodstuffs, wine and spirit drinks, handicrafts, and industrial products.

 

PROTECTION OF G.I IN TRIPS AGREEMENT

The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) defines “geographical indications” as indications that identify 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 geographic origin.“

In 1994, when negotiations on the WTO TRIPS were concluded, governments of all WTO member countries (164 countries, as of August 2016) had agreed to set certain basic standards for the protection of GIs in all member countries. There are, in effect, two basic obligations on WTO member governments relating to GIs in the TRIPS agreement:

  • Article 22 of the TRIPS Agreement says that all governments must provide legal opportunities in their own laws for the owner of a GI registered in that country to prevent the use of marks that mislead the public as to the geographical origin of the good. This includes prevention of use of a geographical name which although literally true “falsely represents” that the product comes from somewhere else.
  • Article 23 of the TRIPS Agreement says that all governments must provide the owners of GI the right, under their laws, to prevent the use of a geographical indication identifying wines not originating in the place indicated by the geographical indication. This applies even where the public is not being misled, where there is no unfair competition and where the true origin of the good is indicated or the geographical indication is accompanied by expressions such as “kind”, “type”, “style”, “imitation” or the like. Similar protection must be given to geographical indications identifying spirits.

Article 24 of TRIPS provides a number of exceptions to the protection of geographical indications that are particularly relevant for geographical indications for wines and spirits (Article 23).

 

WHAT RIGHTS ARE PROVIDED IN G.I?

A geographical indication right 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. For example, in the jurisdictions in which the Darjeeling geographical indication is protected, producers of Darjeeling tea can exclude use of the term “Darjeeling” for tea not grown in their tea gardens or not produced according to the standards set out in the code of practice for the geographical indication.

 

However, a protected 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. Protection for a geographical indication is usually obtained by acquiring a right over the sign that constitutes the indication.

 

 GI IN INDIA


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  agreement. As soon as TRIPS agreement was applicable In India, which actually aimed at the protection of intellectual property, the legislation for protection and registration of G.I was made in 1999 namely Geographical Indicators Goods (registration and protection) act,1999 was made and implemented in our country.  This legislation is a sui generis legislation. This G.I  tags is issued by the Geographical Indication Registry under the Department of Industry Promotion and Internal Trade, Ministry of Commerce and Industry. 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. 

PROCESS OF REGISTRATION IN INDIA-

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 Registrar of Geographical Indication is divided into two parts. Part ’A’ consists of particulars relating to registered Geographical indications and Part ‘B’ consists of particulars of the registered authorized users-who are manufacturer  or any other person related to GI tag . The registration process is similar to both for registration of geographical indication and an authorized user which is  given below:

GEOGRAPHICAL INDICATIONS TRACES AROUND THE WORLD

From long period of time, governments were protecting trademarks and intellectual properties related to food items and good identified with a particular region since at least the end of 19th century. 

One of the first GI systems is the one used in France from the early part of the 20th century known as appellation d’origine contrôlée (AOC). Items that meet geographical origin and quality standards may be endorsed with a government-issued stamp which acts as official certification of the origins and standards of the product. Examples of products that have such “appellations of origin” include Gruyère cheese (from Switzerland) and many French wines.

Geographical indications have long been associated with the concept of terroir and with Europe as an entity, where there is a tradition of associating certain food products with particular regions. Under European Union Law, the protected designation of origin framework which came into effect in 1992 regulates the following systems of geographical indications: “Protected designation of origin” (PDO), “protected geographical indication” (PGI), and Traditional Specialities Guaranteed” (TSG).

 

NEED OF G.I PROTECTION IN TODAY’S TIMES

The legal protection of G.I. is extremely important given its commercial potential. Without adequate legal protection, rivals with no rightful claim to the G.I. are free to benefit on its reputation. Such unethical business activities cause income loss for G.I. right holders and consumer confusion. Additionally, such actions may ultimately harm the reputation and goodwill connected to a geographical indicator. If such attributes are protected properly, then that will help in protection of the rights of the G.I holder in instance of rights violation or loss of income due to misuse.

REMEDIES FOR THE INFRINGEMENT OF G.I

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 that particular geographic area, which can cause confusion to general public. 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:

  1. CIVIL REMEDIES which include of filing a temporary or permanent injunction, paying of damages and Delivery of the infringing labels and indications containing products.
  2. CRIMINAL REMEDIES as given in chapter VII of the act which deals with the offences and punishment of such acts of infringement committed.

 

DIFFERENCE BETWEEN G.I AND TRADEMARK

With trademark and G.I having the same nature, they are often confused a lot, but here are some differences given below as follows;

GEOGRAPHICAL INDICATIONS TRADEMARKS
Geographical indications (GIs) identify a good as originating from a particular place. Trademark identifies a good or service as originating from a particular company.
The name used as a geographical indication is usually predetermined by the name of a geographical area.   A trademark often consists of a fanciful or arbitrary sign
GI may be used by any persons in the area of origin, who produces the good according to specified standards, but because of its link with the place of origin, a GI cannot be assigned or licensed to someone outside that place or not belonging to the group of authorized producers. A trademark can be assigned or licensed to anyone, anywhere in the world, because it is linked to a specific company and not to a particular place

 

ADVANTAGES OF GEOGRAPHICAL INDICATIONS

  1. Registered geographical indications have the exclusive right to access or use G.I.’s products during the business.
  2. Authorized users enjoy the right to sue for infringement.
  3. It provides legal protection to geographical signs in India.
  4. Prevents unauthorized use of registered geographical indications by others.
  5. It provides legal protection to Indian geographical signals which in turn promotes exports.
  6. It promotes the economic prosperity of producers of goods produced in a geographical area.
  7. A registered owner can also approach for legal protection in other WTO member countries.
  8. It provides legal protection to the respective goods in domestic as well as in international markets.

 

CONCLUSION

Since the adoption of the TRIPS Agreement, there has been increased awareness of the need for adequate protection of geographic Indications. There are various countries that are using various laws for the protection and registration of G.I tags as they help in preserving the originality of products and help in providing remedies in case of infringement. In India still mor efforts are needed in this direction.

 

 

Leave a Reply