Authored By – NAMITHASRI.S, CHETTINAD SCHOOL OF LAW
Edited By – Rajarshi Tripathi
INTRODUCTION
A product is said to as having a geographic indication if it has distinctive qualities that come from its original location and make it stand out from other similar products. The protection of goods using GI tags was greatly aided by the TRIPS and Lisbon agreements.
In India, there are two legal frameworks implemented by the Indian government to establish proper legal protection for the products that are registered under Geographical Indications. They are,
- Geographical indications of goods (registration and protection) Act, 1999.
- Geographical indications of goods (registration and protection) rules, 2002.
According to the GI Act of 1999 and the GI Rules of 2002, products that have a GI tag and the users who have authorization to use them are granted protection and certain privileges
Keywords: Geographical Indications, GI Act, GI Rules, TRIPS agreement, Lisbon agreement
CONCEPT AND SIGNIFICANCE
Geographical indicators are distinctive labels applied to goods that are made in a certain area and have certain qualities, reputations, and traits that are exclusive to that location.
It helps to identify the goods of a specific geographical place ensures the specific features of those GI-taggedproducts and also promotes the products of that particular geographical place and its producers.
ORIGIN AND EVOLUTION
The geographical indication protection was first initiated in France by the system called the Appellation Origin system which existed in the early 20th century. This system’s goal is to protect the particular region’s product and its unique features, heritage, and production method and also enhance the same. In those times Geographical Indications were called as Appellation of Origin.
Then later on the Lisbon Agreement of 1958 aimed to ensure the legal framework for protecting appellations of origin. The registered member states gain from this agreement by having their products recognized as coming from their nations, and it also defines the phrase “Appellation of Origin”.
Appellations of origin are the geographical name of a country, region, or locality, which serves to designate a product originating therein, the quality and characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors.[1] The agreement TRIPS restricts GI tag usage which will amount to misleading the public about the place where the product has originated and it also aimed at the additional protection regarding wines and spirits. Concerning this agreement, India implemented certain rules and acts.
GEOGRAPHICAL INDICATIONS OF GOODS (REGISTRATION AND PROTECTION) ACT, 1999
The TRIPS agreement exerted pressure on the Indian government to enact this act, which provides a suitable legal framework for the protection of items bearing the Geographical Indication mark. Protecting the goods that are registered under geographic indications is the primary goal of this act. This act establishes a clear registration procedure for GI product registration, places limitations on who is eligible to apply for GI tags, and gives authorized users additional rights. This legislation penalizes unauthorized users and provides civil and criminal remedies to persons who have been violated in the event of infringement.
GEOGRAPHICAL INDICATIONS OF GOODS (REGISTRATION AND PROTECTION) RULES, 2002
The government of India enacted these rules to offer guidelines for the execution of the GI Act of 1999. These rules establish specific requirements for the registration, administration, and management of GI-tagged goods protection.
FACTORS TO BE CONSIDERED BEFORE REGISTRATION
ELIGIBILITY FOR REGISTRATION
- Any person, organization, manufacturer, or authority can register for the GI tag of the product.
- Interest of the producers should be shown by the applicant.
- Application must have been made in the prescribed form and should contain all details about the product.
- Application must be made to the registrar of GI with the registration fee.
PRODUCT DOES NOT AMOUNT TO REGISTRATION
- When the product use deceives or is contrary to the law or
- When the products consist of obscene content or cause hurt to any religious people.
- When the product has been falsely represented which is originated in any other region.
REGISTRATION PROCEDURE
IDENTIFICATION OF GI
The first step is to pick out a product that is to be registered for a GI tag. The products can be agricultural, industrial, handicrafts, or can also be natural resources but those products should possess unique features and qualities towards the geographical place from where it is been originated, and that product should have some reputation because of its geographical origin. While identifying the product it should ensure the geographical place from where it originated and enough documents should be given to prove the unique quality of the product and its link to the place of origin.
PROCESS RELATED TO APPLICATION FORM: (SECTION 11 OF GI ACT)CONTENTS NEEDED FOR FILING THE APPLICATION
First, the application should be obtained from the concerned authority and the applicant should fill the application with all the necessary information related to the product like its unique quality, features, and place of origin with sufficient documents that stand as evidence for the originality of the product.
After filing all these details, the applicant should sign the application, and a statement consisting of all his details should be specified in the application. Later on, the application should be given to the concerned authority.
INSPECTION OF APPLICATION
Once the application is submitted, the authorities scrutinize it, ensuring that it meets all of the necessary standards and thoroughly reviewing it. Authorities assess the product description, quality, features, and place of origin to ensure compliance with all legal norms and regulations. The authorities examine all these with experts’ help and state the specifications’ authenticity and correctness.
NOTICE TO SHOW CAUSE: (SECTION 12 OF GI ACT)
Authority after examination if have any clarifications or objections then he can issue the applicant a notice and ask him to show cause the reason for the same. He should also state the grounds for issuing the notice in detail.
The applicant on receiving the notice should respond to the notice within 2 months or else the application may also be rejected. Once the register hears the reasons from the applicant then he can decide either to approve or reject the application. Then the applicant can also file for an appeal within 1 month if aggrieved.
PUBLICATION: (SECTION 13 OF GI ACT)
Upon approval of the application, the GI-tagged product should be published in journals, newspapers, or any other online platform. Upon acceptance of the application, the publication should take place within three months. All details regarding the product and its origin should be accurately stated in the advertisement.
OPPOSITION AFTER PUBLICATION: (SECTION 14 OF GI ACT)
Once the application is published, anyone who believes the product is ineligible for the GI tag may file an opposition against it with the register. The register then delivers the applicant a copy of the notification and asks him to respond within two months or the application will be abandoned.
If the applicant files the counter-statement then the register should give a copy of the counter-statement to the person who filed the opposition. Then the register should allow to show cause for both sides and can conclude either to accept or reject the application based on the statements and evidence given.
CORRECTIONS AND AMENDMENTS: (SECTION 15 OF CI ACT)
If the applicant found some specifications that need a correction or amendment then he can by stating the grounds apply to the register and then on sufficient reason he may permit the applicant to make certain corrections. The amendments or corrections can be permitted either before or after the acceptance of the application.
REGISTRATION: (SECTION 16 OF GI ACT)
Once the examination and publication are over, then the register after hearing the opposition, if satisfied accepts the application and registers it and the date on which it is registered is called the registration date.
After this process, the register gives the authorized user a certificate of the registration and if the registration is not completed within 12 months, on notice to the applicant the register can abandon the application. The register can also make corrections in the certificate in case of any clerical errors.
DURATION, RENEWAL, AND RESTORATION: (SECTION 18 OF GI ACT)
Once the product gets its GI tag then the protection of that product under GI is valid for 10 years. If the applicant needs to continue with the duration of the protection then he can renew it by paying the fee for the renewal before the validity period ends or else the protection gets terminated and the terminated protection can also be restored by paying the fees within the period of 1 year.
APPEAL TO THE APPELLATE BOARDS: (SECTION 31 OF GI ACT)
If the applicant feels that the decision made by the register is wrong then he can appeal against the decision within 3 months. The applicant should state the reasons for the appeal and should give notice with all the essential documents. Then the court allows both sides to show cause and derive the conclusion based on the facts and the evidence given.
RIGHTS OBTAINED AFTER REGISTRATION
- The authorized user on registration enjoys an unlimited right over that particular product and also has the right to restrict the unauthorized user who infringes the GI-tagged products.
- The users also have the right to get remedies in case of any unauthorized use and also restrict the imitation of the product.
INFRINGEMENT AND ITS REMEDIES
INFRINGEMENT: (SECTION 22 OF GI ACT)
If any person who is not an authorized user uses the registered GI tag for goods which is not produced in that specific geographical area and misleads the public or makes any imitation of the product which is registered under GI or else the act done by that person damages the reputation of the product then that leads to the infringement under GI.
However, the infringement does not include a person who is not an authorized person but obtains that Gi-tagged product for the further process or packaging of the good.
REMEDIES
- Remedies include civil, criminal, and administrative remedies.
- Under civil remedies the aggrieved party claims for the damages with an injunction that can either be temporary or permanent or stop the production or sale of infringing goods.
- Under criminal remedies the aggrieved party claims for the fines and imprisonment for infringing the GI-tagged goods.
- Under administrative remedies exercised by the register of GI by cancelling the registration of infringing goods.
IMPORTANT CASES AND DISPUTES RELATED TO GI
- Tea Board, India vs. ITC Limited
This case is popularly known as the Darjeeling tea case.
FACTS:
Darjeeling tea has a distinct taste and quality due to its West Bengal origin. The petitioner oversaw the production of Darjeeling tea and obtained protection under Geographical indications for tea produced in Darjeeling, as well as the GI tag Darjeeling tea.
The defendant, ITC Limited used the name Darjeeling for the longue services in the hotel which is in Calcutta. So, the petitioner filed a suit against the defendant for using the name Darjeeling for their longue services for the infringement of misleading the public by using GI tagged name.
JUDGEMENT:
The court held that the GI protection is only given for the goods which is registered and not for the services. Here the petitioner has got a GI tag only for the tea produced in Darjeeling but the defendant has used the Darjeeling for his longue services. So there is no passing off occurred and hence the defendant is not liable for the infringement under GI.
2. India -us basmati rice dispute
This case is popularly known as the Basmati case.
FACTS:
Basmati is the name given to the rice variety which means the fragrance or the flavor which is widely grown in India and Pakistan. In 1997, the Rice tech company obtained a patent for the rice named basmati which is grown outside India and Pakistan. So, India objected to the patent given to a rice tech company because the name Basmati is known for the rice grown in India and Pakistan and stated that if rice tech uses the Basmati name for other region-grown rice then it will mislead the consumers buying the Basmati Rice from India.
OUTCOME:
As a result of this objection, the rice tech has withdrawn many patent claims in which Basmati is also one and India got a GI tag over Basmati rice.
3. Tirupati Laddu controversy
FACTS:
Laddu which is made in Tirupati Perumal temple is know for its unique taste which is widely spread among the people. So, Tirupati Devasthanam registered and got GI protection for the Tirupati Laddu. But many were against this and filed cases against this as it is widely spread no need for protection under the Geographical indications and also stated that it can’t be restricted by GI protection as it is given to the public domain as prasad.
OUTCOME: As a result, the court held that the GI registration for Tirupati Laddu can’t be cancelled due to its popularity and public domain issues.
CONCLUSION & COMMENTS
There were no specific laws for GI protection initially in India. Later by the influence of the TRIPS agreement, the government of India came up with a legal framework for the protection of GI in India which includes the GI Act and GI Rules. The provisions in these acts and rules paves the way for the proper registration of GI and also for the regulation and protection of the rights of the authorized users under GI. Thus India protects GI-tagged products with a proper legal framework established in 1999.
REFERENCES
- Books / Commentaries / Journals Referred
- Law Relating To Intellectual Property Rights: V.K. Ahuja
- Online Articles / Sources Referred
- Cases Referred:
- Tea Board, India vs. ITC Limited
- India -us basmati rice dispute
- Tirupati Laddu controversy
- Statutes Referred
- Geographical indications of goods (registration and protection) Act, 1999.
- Geographical indications of goods (registration and protection) rules, 2002.
