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Written by: Vaishnavi Jetti
INTRODUCTION
‘Geographical Indication’ (GIs), is the indication that a particular good or product originated from a country, locality, or region, that has unique characteristics, reputation, or qualities that represents its place of origin.[1] These kinds of features, reputation or qualities may result due to various factors like soil, raw materials, regional climate, weather, etc., also due to the manufacturing method or product preparation (such as traditional production methods or other human factors) or due to maintenance of certain quality standard, etc.
If a product gets geographical indication, then the product and the origin of that product become famous. The producers also get a value-added to their product and property once the product gets geographical indication. Following are the functions which are basically formed by them:
1. Identification of products originated from the specific region;
2. Suggests the consumers regarding the product regarding its quality, reputation, features which they are well-known in that origin;
3. Also promotes the goods or products of the producer of that particular region.
Although GIs are equally valuable as trademarks, their role is distinct from the purpose of trademarks. Trademarks belong to enterprises and are used to identify goods and services in the market, although one specific enterprise has no geographical indication. It may be used simultaneously by different enterprises.
DEVELOPMENT OF GEOGRAPHICAL INDICATIONS
During the late 1980s and early 1990s, the term ‘Geographical Indication’ was used for the first time during the Uruguay Round and in two previous international treaties i.e., Paris Convention for the Protection of Industries Property, 1883 and the Madrid Agreement for the Repression of False Indications of Origin, 1891, which deals with an indication of source and an indication of the origin respectively. Subsequently, the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, 1958 (dealing with ‘appellations of origin’) and the TRIPs Agreement also uses the expression ‘geographical indications.’
GIs being a unique form of intellectual property unlike patents, copyrights, or trademarks.[2] They were universally accepted under the category of IP Laws. Few countries protect them under original and specific geographical indication law like in European Union and India, whereas few countries protect them largely under:
an appellation of the origin;
trademark law or few countries may get influenced by English Law under the Common Law tort of the passing off as with unregistered trademark;
or indirectly through unfair competition law.
They may also be covered within the areas of laws and regulations other than intellectual property in order to protect them (such as consumer protection rules relating to trade). Compared with other intellectual property rights, GIs are newer which were covered in Trade-Related Aspects of Intellectual Property Rights (TRIPS) and also in previous multilateral treaties.
VITAL PROVISIONS OF GIs IN TRIPs AGREEMENT
Article 22: Protection of Geographical Indication[3]
1. Indication which identifies a product or good as originating in a region or locality in a territory, where a given quality, reputation, or other characteristics of that product or good is essentially attributable to its geographical origin.
2. With respect to the GIs, for the interested parties to prevent the members shall provide legal means:
The use of any means in the designation or presentation of a good which indicates or suggests that the good or product in the question of origin in a geographical area other than the true place of origin in a way which misleads the public as to the geographical origin of that good or product.
Any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention, 1967.
3. Where the use of the indication in the trademark for such goods in the Member is of such a kind as to lead the public to a misleading nature, a Member shall, ex officio where its legislation allows or at the request of an interested party, refused or invalidate the registration of the trademark containing or consisting of a geographical indication for goods not originating on the specifies territory.
Article 24: International Negotiations Exceptions[4]
There shall be no obligation under their agreement in order to protect geographical indications which are not to be protected in their country of origin or which have fallen into disuse in that particular country.
GEOGRAPHICAL INDICATION LAWS IN INDIA
There was no specific law regarding the geographical indication in India before 1999 which could be able to protect the producer’s interests. Irrespective of being a member of the TRIPs Agreement. However, the judiciary has been active in preventing persons to take unlawful advantage of GIs.
Basmati Controversy[5]
The long-grained aromatic rice variety which was known as ‘Basmati’ is a traditional product which was highly grown in Sub-Himalayan areas and in India for about hundreds of years. Also, was developed by various varieties by the farmers by employing traditional methods and practices. No other nation can allow its members to use this indication and this was one of the arguments of India. India became very concerned in 1998 about safeguarding its GIs since Ricetec Inc., a global US firm located in Alvin, Texas, was given a patent by the United States Patent and Trademark Office for ‘new lines and grains’ on behalf of 'Basmati.' It was also claimed by the Ricetec that the new ‘Basmati’ rice had better characteristics than that of the original one and can be successfully grown in specified geographical areas in North America. Later, ‘Texmati’, ‘Kasmati’, and ‘Jasmati’ were used as trademarks for several years for the sale of its version of ‘Basmati’ rice. Therefore, controversy raised: firstly, as per India, the grant to patent was invalid; secondly, Ricetec’s rice marketing in the name of ‘Basmati’ which as per India was a GI in India and shouldn’t be allowed.
After two and a half years of hard work, India collected data and challenged the patents of Ricetec Inc. The U.S. Patent and Trademark Office (UPSTO) issued only three out of twenty claims of strains of hybrid ‘Basmati’ grains of Ricetec. The mandarins of the Patent Office noted that, as it was neither a trademarked term or geographical indicator, Ricetec was qualified for 'Basmati' name. Subsequently 'Basmati' was also determined to be not even a geographical indication in India.
THE GEOGRAPHICAL INDICATIONS OF GOODS (REGISTRATION AND PROTECTION) ACT, 1999[6]
Due to the 'Basmati' argument, India has implemented the Geographical Indications of Goods Act of 1999. This was the first explicit legislation to register geographical indicators and safeguard them. The act mentions ‘geographical indication’ with respect to goods as ‘a statement identifying any goods such as agricultural goods, natural products as originating in or manufactured in the territory or in any region or locality of the territory of which that good is essentially due to a given quality, reputation or other characteristics, and in the case of the manufacture of such goods, one of the activities of either the production or of processing or preparation of the goods concerned takes place.’ This definition is based on the definition given in the TRIPs Agreement.
Registration rights:
To get a geographical indication it is mandatory to get registered in order to claim the rights in respect of such indication under the Act. The registration of a geographical indication shall give:
i. The right to obtain relief in respect of infringement of such geographical indication to the registered proprietor and the authorized user or users.
ii. The exclusive right to the use of the geographical indication in relation to the goods in respect of which the geographical indication is regulated to the authorized.
Registered geographical rights infringement:
Who’s not an authorized user of a registered geographical indication infringes it when the person:
i. Makes the use of the GI by the means in any designations or presentations of the goods which indicates or suggests that the particular good originates in a geographical region other than the true place of such goods in a manner which misleads the consumers as to the geographical origin of such goods,
ii. Makes use of any geographical indication in a manner where it constitutes an act of unfair competition which includes the passing off in respect of registered geographical indication,
iii. Makes use of another geographical indication to the goods though they belong to that territory, region, or locality in which the goods originate, falsely represents to the consumers that the good originated in the territory, region, or locality in respect.
The geographical designation is infringed by expressions such as 'kind', 'imitation', or similar expressions, even if it is also specified to show the genuine origin of the items.
Examples of few Indian Geographical Indications are Basmati Rice, Alphanso Mango, Nagpur Orange, KolhapuriChappal, BikaneriBhujia, Agra Petha, Paithani and Banaras Saree, Feni (Liquor from Goa), LonavalaChikki, TirunelveliHalwa, Mysore Rasam, etc.
CONCLUSION
Geographic indicators are equal to other intellectual property rights, for example, trademarks or copyrights. There is no variation in the level of protection of those rights in the product categories in any of the other areas of intellectual property rights. Since the TRIPS Agreement was adopted, Member understanding has continued to increase that all products need adequate protection of geographical indications. Furthermore, the negotiations in the sector of agricultural and industrial products undertaken by the WTO reveals that the level of protection of geographical indications for wines and spirits is being increased for all goods for geographical indications. Such protection is an essential marketing tool and an additional value for exports, as it boosts market access opportunities for such goods.
[1]V.K.Ahuja, “PROTECTION OF GEOGRAPHICAL INDICATIONS: NATIONAL AND INTERNATIONAL PERSPECTIVE”, 46 JILI 269 (2004). [2] Graham Dutfield, “GEOGRAPHICAL INDICATION AND THEIR FEASIBILITY”, Institute for Environment and Development 14 (2011). [3]Art 22 of TRIPs Agreement. [4]Art 24 of TRIPs Agreement. [5]Supra note 1 at 272. [6]The Geographical Indications of Goods (Registration and Protection) Act, 1999.