Geographical Indications (GI) – My Champagne your Tequila?

Introduction

Geographical indications are the signs or indications which display that a product has originated from a particular region. GI also flaunts the quality, characteristics, and reputation of the product. A geographical indication must be unique and facilitate the consumer to differentiate between similar products. A good geographical indication is one that exhibits the place of origin, given the quality and reputation of the product. For example- Champagne is the geographical indication for the sparkling wine produced in north-eastern France while Tequila is the GI for distilled beverage produced in Mexico. This article will discuss the meaning and registration of geographical indications. This article will also focus on the offences and penalties under the Geographical Indications of Goods (Registration and Protection) Act, 1999.

Meaning of Geographical indication

Geographical indications are the tool for the producer which conveys the consumer information such as specific place of origin of the product, qualities, and characteristics of the product. Geographical indication helps the consumer to differentiate the renowned product from other similar products in the market. For example, we have numerous sources of oranges but Nagpur Oranges is known for its sweet and juicy pulp with the rustic and pockmarked exterior.

Article 22 (1) of the Agreement on Trade-Related Aspects Of Intellectual Property defines GI as Geographical indications are, for the purposes of this agreement, indications which 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 characteristics of the good is essentially attributable to its geographical origin.[1]India also has adopted this agreement and passed a legislation known as Geographical Indications of Goods (Registration and Protection) Act, 1999. This legislation provides the definition, registration, and protection of the geographical indication. Section 2 (e) of the act defines the term GI in respect of goods as an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristics of such goods is essentially attributable to its geographical origin and in the case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be.[2]

Registration of Geographical Indication

Every geographical indication needs to be registered. Chapter III of the act deals with the procedure of registration. As per section 11, any association of persons or producers or any organization or authority established by or under any law for the time being in force representing the interest of the producers of the concerned goods, who wants to register a geographical indication in relation to such goods shall apply in writing to the Registrar. The application must be made in a suggested form and manner. The application for registration must contain the following information:[3]

A statement describing how the geographical indication display that goods is originating from the concerned territory of the country or region or locality in the country. The description of the goods shall be done in respect of specific quality, reputation or other characteristics of which are due exclusively or essentially to the geographical environment, with its inherent natural and human factors, and the production, processing or preparation of which takes place in such territory, region or locality.
Application must include the class of goods to which the geographical indication shall apply.
The geographical map of the territory of the country or region or locality in the country in which the goods originate or are being manufactured.
The particulars regarding the appearance of the geographical indication as to whether it is comprised of the words or figurative elements or both.
If any case requires, then the statement disclosing particulars of the producers of the concerned goods shall also be submitted for registration along with the registration of the geographical indications.

The application is required to be filed in the office of Geographical Indications Registry situated in the same territory to which the geographical indication relates. A single application may be made for registration of a geographical indication for different classes of goods. The Registrar can accept or reject the application. If he refuses the application, he has to record the reasons for the same in writing.

After the application is accepted by the Registrar, he shall advertise the geographical indication. The Registrar has the authority to re-advertise the geographical indication if any error is found in the application after the first advertisement. He can also re-advertise in a case where correction or amendment is made in the application by the applicant under section 15.

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If no one opposes the application of the geographical indication then the Registrar shall operate under section 16 of the act register the said geographical indication and the authorized users, if any, mentioned in the application. The geographical indication and the authorized users, when registered, shall be registered as of the date of the making of the said application and that date shall be deemed to be the date of registration.[4]

Any person can oppose the geographical indication within four months (including the extension period as allowed by the Registrar) of the advertisement of the geographical indication. The Registrar will serve the notice of opposition to the applicant. Then the applicant has to send a counter-statement consisting grounds on which he is defending himself to the Registrar within two months. Then, the notice of counter-statement will be sent to the person opposing. The Registrar after hearing both the parties can permit the registration. Then the geographical indication will be registered as per section 16 of the act by the Registrar. A certificate sealed with the seal of the Geographical Indications Registry will be issued to the applicant and authorized users.

Duration of Geographical Indication

The duration of registration of geographical indications is ten years as per section 18 of the act. The Registrar shall on an application made by the registered proprietor or by the authorized user and within the prescribed period and subject to the payment of the prescribed fee, renew the registration of the geographical indication or authorized user for a period of ten years from the date of expiration of the original registration or of the last renewal of registration.[5] Before the expiration of the last registration of a geographical indication or the authorized user, the Registrar is required to send notice to the authorized user of the date of expiration and the conditions as to payment of fees upon which there will be a renewal of registration. If conditions have not been duly complied with then after the expiration of the time prescribed in that behalf, Registrar may remove the geographical indication or the authorized user from the register.

Geographical Indication which are not registrable

This act specifies certain geographical indication registration of which is prohibited. As per section 9, the geographical indication shall not be registered in the following circumstances:[6]

Deceptive geographical indications or use of which would be likely tocause confusion for consumers.
Use of which would be contrary to any law.
GI which comprises or contains scandalous or obscene matter.
GI which comprises or contains any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India.
GI which is not entitled to be protected under any law or in a court.
GI which are merely generic names or indications of goods and are, therefore, not or ceased to be protected in their country of origin. GI which have fallen into disuse in that country.
GI which, although literally true as to the territory, region or locality in which the goods originate, but falsely represent to the persons that the goods originate in another territory, region or locality, as the case may be.

Offences related to Geographical Indication

Chapter VIII of the act specifies the offences relating to the geographical indications. It also prescribes punishments for those offences. As per section 38 of the act if a person without the assent of the authorized user of the geographical indication makes that GI or similar deceptive GI then he is falsifying the GI. Sub-section 2 of this provision provides if a person is applying any geographical indication on goods or packages containing goods, or he is using any package bearing the geographical indication or a similar deceptive geographical indication, without the assent of the authorized user then he is falsely applying the GI. As per section 39, if a person commits any offense mentioned under section 38 then he shall be liable for imprisonment of maximum three years and a fine of fifty thousand which can extend up to two lakh rupees.

Section 40 of the Act provides punishment for selling goods to which false geographical indication is applied. Any person who sells, lets for hire or exposes for sale, or hires or has in his possession for sale, goods or things to which any false geographical indication is applied shall be liable for imprisonment of maximum three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees.[7]

Section 42 of the act provides for the offense of falsely representing a geographical indication as registered which is not registered, or represents a geographical indication in respect of goods for which that GI is not registered in fact. Punishment for this offense is imprisonment of a maximum of 3 years or fine or both.

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As per of the act any person who uses on his place of business, or on any document issued by him, or otherwise, words which would reasonably lead to the believe that his place of business is in any way connected with the Geographical Indications Registry, he shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.[8]

Section 44 provides that any person who makes or causes to be made a false entry in the register of geographical indications, or writing seems to be an entry of the register, or produces such copy as evidence knowing that it is false. Such persons are punishable with an imprisonment of a term which can extend up to two years or fine or both.

Offences under section 39, 40, and 41 are cognizable offences. Section 50 of the act provides that the courts can take cognizance on the written complaint by the registrar. In cases where a geographical indication is represented as registered in respect of any goods in respect of which it is not registered, the court can take cognizance on the certificate issued by the Registrar about the same matter. Judicial magistrate first class or Metropolitan Magistrate first class or any court of above rank can try the offences under the act. Any police officer not below the rank of deputy superintendent of police or equivalent, may, if he satisfied that any of the offences referred in section 39, 40, 41 has been, is being, or is likely to be, committed, search and seize without warrant the goods, die, block, machine, plate, other instruments or things involved in committing the offense, wherever found, and all the articles so seized shall, as soon as practicable, be produced before the Judicial Magistrate of the first class or Metropolitan Magistrate.[9]

This act also provides for the offences by the companies. Section 49 states if an offense under this Act is committed by a company, the company as well as every person in charge of the company for the conduct of its business at the time of the commission of the offense shall be deemed to be guilty of the offense and shall be liable to be proceeded against and punished. Where it is proved that the offense has been committed with the consent or due to the negligence of any director or manager or secretary or other officers of the company. Then all these people will be liable to proceed and be punished.

Conclusion

Geographical indications distinguish the product of a producer from other similar products available in the market. It flaunts the qualities of the product and grabs the attention of the consumers. GI helps the consumers to figure out the characteristics and place of origin of the product. We saw that the Geographical Indications of Goods(Registration and Protection) Act, 1999 is a wholesome act which deals with all the aspects of the geographical indication. It provides for the registration and protection of the geographical indications. It also deals with the offences in respect of GI. The act specifies which kind of geographical indications are not capable of being registered. Therefore, it can be said that this legislation is regulating and adequately protecting the geographical indication.

References:

[1] Article 22 (1) of Agreement on Trade Related Aspects of Intellectual Property Rights, https://www.wto.org/english/docs_e/legal_e/27-trips_04b_e.htm

[2] Section 2 (e) of Geographical Indications of Goods (Registration and Protection) Act, 1999.

[3] Section 11 of Geographical Indications of Goods (Registration and Protection) Act, 1999.

[4] Section 16 of Geographical Indications of Goods(Registration and Protection) Act, 1999.

[5] Section 18 of Geographical Indications of Goods (Registration and Protection) Act, 1999.

[6] Section 9 of Geographical Indications of Goods (Registration and Protection) Act, 1999.

[7] Section 40 of Geographical Indications of Goods (Registration and Protection) Act, 1999.

[8] Section 43 of Geographical Indications of Goods (Registration and Protection) Act, 1999.

[9] Sub-section (4) of section 50 of Geographical Indications of Goods(Registration and Protection) Act, 1999.