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Introduction
With the changing time, the rights also have changed, we all know that law cannot remain static it needs to get evolved with the changing time to cater to the needs of society and to make the stability of peace in society. In today’s world, we get to see many different creations day to day, thus the prominence of Intellectual Property Rights occupies a dominant position in the legal and social arena. The Intellectual Property rights protect the application of ideas, new inventions, and important information that are of commercial value.[1] The watershed in the field of IPR is the TRIPS Agreement [The Trade-Related Aspects of Intellectual Property Rights] in the year 1995, this agreement categorizes intellectual property in seven different contexts titled as copyright, trademarks, patents, Geographical Indication, Patents, trade secrets & Industrial designs. The agreement provided minimum standards of protection for GIs and some additional protection for other products. Part II Section III of the agreement in Article 22-24 enshrined some minimum standards of guidelines for protection to GI that the members of the World Trade Organization member must provide.[2] In compliance with the TRIPS agreement has enacted a sui generis law for GI.
Every region boosts of something unique and the products are their claim to frame. The products are combination of the best of man and nature and it has been carefully preserved and handed over for generations. In order to celebrate, cherish and recognise the unique identity connecting the products and places, the famous GI tag was developed for it. GI helps a product to get a unique recognition and making goodwill in market. In India, we have sui generis system of GI protection, the legal framework for the GI protection in India is not too old its recently developed in 2000’s with the enactment of the Geographical Indications of Goods (Registration and Protection) Act, 1999, with the ‘Geographical Indications of Goods (Registration and Protection) Rules, 2002, the Act become effective from the month of September in the year 2003. Prior to this we didn’t have any specific legislation for protection of GIs. At that time, we had three main options for protection of GIs in the Indian legal system that are as follows:
- From Certification Trademarks.[3]
- With the help of court i.e. passing off actions in courts.
- From consumer protection laws.
Before the enactment of Act, there are Geographical Indications that get protected with the help of the aforementioned methods like the famous Scotch Whisky case, which was protected through the judicial umbrella. GI is one of the most important marketing tools as they objectified the product and increases its worth, price and novelty.
After the enactment of the Geographical Indication Act, the government has established the Geographical Indication Registry with all India jurisdiction, at Chennai, where GI can be registered. The Act is administered by the Controller General of Patents, Designs and Trade Marks.[4]
What is Geographical Indication?
As per the definition under Sec 2(e) of the GI Act, 1999 “geographical indication”, in relation to goods, means 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 characteristic of such goods is essentially attributable to its geographical origin and in 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.”[5]
A GI is granted particularly to an agricultural, natural or a manufactured product from a definite location, geographical territory which has some unique quality or reputation due to its presence of location. The GI tag exits for recognizing, protecting and to stop the misuse of specialty of some particular region. The GI product has some uniqueness some specialty which get evolved in decades or famous throughout the world just because of its quality or of its nature. E.g. Kandhamal Haldi, Banarasi Saare, French Wine etc.
Why we need Geographical Indication tag and Act?
We need GI tag and Act as there are several reasons behind them and also GI tag has multidimensional benefits for nation as well as for that particular region. First GI tag helps us to distinct a fake and real product, after getting GI tag for a product no one can misuse the name of it and deceive the individuals anywhere in world. Second, GI tags are more important today because they identify a product source, which gives it a different name, uniqueness and premium price in market. Third, GI tag can boost tourism which create new opportunity for employment. E.g. Many foreigners visit saree market of Banaras as the Banarasi Saree is famous in all over the world, it has GI tag. Fourth, it will boost MSME sector, it benefited the rural economy by gain in income of farmers. Fifth, GI tag products increases exports and play a major role in trade between different countries, e.g. Pochampally Ikat, Darjeeling Tea and Kanjeevaram silk sarees plays a major role in exports and to increase Indian popularity. Sixth, the enactment of Act provides legal protection to GIs which protects livelihood and promotes employment with good revenues and earnings e.g. the recent addition in list of GI tag in India is Kadaknath Chicken which is famous for its completely black meat, in recent Jhabua district Madhya Pradesh got GI tag for it, prior to grant of GI the rate of one kg chicken was Rs. 500 per Kg but post GI it is Rs.1000 per Kg. Last, due to TRIPs Agreement and enactment of 1999 Act GI is now officially recognised as IPR and also has protection, judicial reliefs in case of infringement with any GI tag or in cases of unfair practices.
There are many other reasons for the need of GI and specific Act but some of the most important reasons are aforementioned. GI also plays a prominent role in commercial relations between intra countries. It is also an outstanding tool for regional, geographical or community based economic development which has dynamic marketing product and may achieve premium price for the product due to its speciality and novelty. The rational for granting GI tag is for the betterment of mankind and is in public interest always.
How to get GI vis-a -vis registration for GI?
To get a GI on any product you need to get it registered then the protection is granted and GI tag is assigned to your product if it fits in the definition of GI and is not in contravention to the Section 9 of the Act, which states the prohibition of registration of certain geographical indications.[6] You need to register your application for GI tag with the Registrar of Geographical Indications. Now other question which comes in mind who can apply for registrations? So, any associate of persons, producer or any organisation or authority established by or under any law representing the interest of the producers of the concerned goods.[7] Once application is being accepted by the registrar of geographical Indications, it needs to get advertised it as per Section 13(1) of the Act.
Effects of Registration and Infringement
After registering your product, it gives you a right to institution of suit against infringement and recovery of damages for such infringement. Section 20 of the Act provides specifically for effects of registration. Once GI is granted, no other person can misuse or tamper or simulate the name to sell or market similar products.
If any person who falsely applies or falsifies any geographical indication, tampers the origin of a good, make or have in possession of dye, blocks, machines to use in falsification of GI may be punished shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakhs rupees.[8]
For how long GI is granted
Once you get GI tag for a product it is valid only for 10 years, after 10 years you may renew the registration for again getting GI. The same process can be repeated to renew the registration after every 10 years. If a registered GI is not renewed by Registrar of Geographical Indications then it is can be removed from the register.
A common dilemma Trademark v. Geographical Indication
The most common confusion in the Intellectual Property rights between GI and Trademark as primae facie they have some resembles characteristics which can confuse you a bit. Both tell about the information about the origin of a product or services. A trademark mainly consists of fancy sign that may be used by its owner or by the persons who are allowed to use it. It can be licensed or granted to anywhere in the world as it is specifically linked to a particular individual or company and not just specific to a particular geographic location or place. On the other hand the GI is granted usually to the name of the place of origin of the product, or to the name of entity by which it gets known in that particular place. A GI is granted for use of all persons who are in the area of origin and produced the product according to that standards for which GI is granted, A GI can never be licensed to outsider who does not belong to that place. It is just an indication.
Challenges & Lacunae
For the protection and safeguard of GI the central government enacted the Act in 2003, the Act has two prime objective first one is the protection of producers unique goods from the counterfeiting and deceptive marketing and fake products under the same name and second one is to establish a sharp balance between trademark and GI protection. The main challenge that we have in the present existing law is about the registration status of GIs in India and also even today many people are not aware about the procedure which is needed to file an application for GI and many people don’t even know about GI. The main concern and lacunae which needs to be addressed is lack of information as how to apply for a GI tag? Many people from village and tribal areas want that their product got GI but they don’t know about the procedure for same as in recent the Kadaknath Chicken which got GI tag comes from the tribal belt of Jhabua (M.P.).
India is a country known for its unity in diversity, India’s vast and vibrant agricultural food varieties along with inter regional variations also makes it difficult while applying for GI. Many times, we get to see the battle for GI tag between states. The most recent controversy is about the GI tag for Rasgoola between Orissa and West Bengal which was a long battle between two countries. The protection of GI has become one of the most contentious issues in the field of Intellectual Property Rights. The first GI tag in India was given in 2004-04 to the famous tea of Darjeeling. The Act does not have anything related to the procedure to fight against the infringement and this is an area where state needs to play a major role. The Act is completely silent on the setting up quality control mechanism for goods, there is no post GI act regime which is most needed and also the act is lacking in post mechanism procedural for implementation of Act. There is a growing need in post GI mechanism that have provisions and ways for promotion and raising awareness regarding the GI and procedure for filing. The aforementioned problems and lacunae are some of the most prominent and fundamentally important, those are needed to be addressed as soon as possible to protect the GI tagged products.
Conclusion & Suggestion
We had enacted the GI Act but still we are not able to achieve the main objective for which it was enacted. This Article discussed the topic of Geographical Indication from A to Z in a crisp manner, here we get to see that there several issues, challenges and concerns which needed to addressed. We need to learn the systematic implementation of GI regulation mechanism from the various nations of world like USA and EU. We have to take a note that for internationally recognised goods there is a need of international protection of utmost importance e.g. Darjeeling Tea. There is a need for GIs to extend their umbrella to protect the traditional culture, knowledge expression that is present in the goods. We have to understand that GIs have the potential and capability of speeding up our growth engine in various ways by promoting tourism, uplifting MSMEs etc. In India there is an urgent need to have a body which can guide or handle all the GI applicants as to assist them about what is required and how the process could be mastered or else rejections would continue to be high given the number of products and cuisines and processes that India possesses, unmatched by other countries globally. The crisp research that is addressed in this article is about the lacunae in the GI Act and implementation which is coupled with the information about GI, this article comprises what all you need to know about the GI, the legal position, the GI Act, How to register GI and lot more which concluded by giving some suggestions for existing law on GI. Till now we have get GI tags for around 300 products and in the recent year it is continuously increasing, this is a good sign but we are far behind at global level to become a flag bearer in field of GI tags and Intellectual Property Rights.
[1] Cornish, Llewelyn and Aplin, Intellectual Property: Patents, Copyright, Trademark and Allied Rights, 7 th edn, London: Sweet & Maxwell Limited, 2010, p.6.
[2] From: https://www.wto.org/english/docs_e/legal_e/27-trips.pdf
[3] Kasturi Das, Socio-Economic Implications of Protecting Geographical Indications in India, August 2009, Centre for WTO Studies, p.6.
[4] The office website (www.patent.office.nic.in) provides information on patents and the geographical indications registry.
[5] From: The Geographical Indications of Goods (Registration and Protection) Act, 1999 http://www.ipindia.nic.in/act-1999.htm
[6]The Geographical Indications of Goods (Registration and Protection) Act, 1999 from http://www.ipindia.nic.in/act-1999.htm
[7] Section 11 of The Geographical Indications of Goods (Registration and Protection) Act, 1999
