To ensure the protection of the Geographical Indication (GI) in India, the Government, along with various other civil society organisations and the NGOs, must keep a close watch on the registration of GIs. The post-registration benefits must really flow to the needy
The protection of the Geographical Indication (GI) in India comes under the purview of the Geographical Indications of Goods (Registration and Protection) Act 1999, known as the GI Act. However, the Act came into force on September 15, 2003. With the completion of 13 years of operationalisation of the GI Act, it has been realised that the Indian Intellectual Property regime has encountered enumerable challenges. But, it must be brought to the public notice that this Act has opened a vast array of opportunities for the country as well. Before, we discuss the Indian scenario, it would be really worth tracing the background of the global GI. Indeed, the Indian Act was made to comply with the provisions of the historic Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of the World Trade Organization (WTO), which came into being in 1995. Being a signatory to the TRIPS, India had to revamp its age-old IP regime. Moving on to a new GI protection and registration process under the TRIPS was a mounting challenge for almost all the developing nations, including India. It is interesting to note that prior to the TRIPS, no serious steps were ever taken to offer adequate protection to the GI. Article 10 of the Paris Convention of 1889 ensured prevention of direct or indirect use of false indication of the source of goods or the identity of the manufacturer, producer or merchant. Further, the Madrid Agreement of 1891 endorsed the protection offered by the Paris Convention to the GI. The Madrid Agreement stressed that special qualities of a particular product must have its source of origin. The relevant source may be used to describe and guarantee the quality of that particular product. The coming of the lisbon Agreement of 1958 could be called a trendsetter as it later helped in shaping the GI-related provisions of the TRIPS. The lisbon Agreement for the first time made it mandatory to protect the Appellations of Origin and their international registration. It highlighted that both natural and human elements could be involved in ensuring qualities of particular goods when it originates from a specific place. In fact, it initiated a proposal to include any such product which would qualify for getting protection under the GI, like handicrafts, pottery, art, textiles, etc. Thus, the current protection and registration of the GI has come a long way.
The GI is one of the most important types of geographical labelling. Article 22 of the TRIPS prohibits the use of indications (words, phrases, images or symbols) that will mislead/deceive the public about the geographical origins of goods. It also forbids any use of the GI that constitutes an act of unfair competition as defined in Article 10 (b) of the Paris Convention. Beyond this, the same article highlights that registration of the GI as trademarks shall be refused or invalidated at the request of an interested party, if their use is likely to mislead the public to the true place of origin. From this, it can precisely be said that under Article 22, the protection of the GI revolves around three main aspects:
a. Protection against the use of indications that can mislead the public or are deceptive
b. Protections against the use of indications in a manner that are acts of unfair competition
c. Refusal or invalidation of trademarks that contain or consist of indications, which may mislead the public
The most important part of the TRIPS GI provisions is that it mandates a two-level system of protection: first, the basic protection applicable to all types of the GI in general under Article 22, and second, additional protection applicable only to the GI denominating wines and spirits under Article 23. This provides a higher set of protection only for a specific category of goods.
How do we view GI in IndiaIJ
The GI is considered the “poor man’s IP” in India. Most of the GI applicants in India are farmers, artisans and craftsmen who belong to lowest rung of the socio-economic ladder or at times, they represent an organisation that desires to register the GI. Else, the rest of the IP segments have so far remained as the exclusive domains of the rich and the privileged. The GI in developing nations demands full protection as they have become vulnerable to open exploitation by the free riders. Thus, the so-called wars between the South (developing nations) and the North (developed nations) are on, even in the protection of the GI. Though these ideological connotations hint Cold War era struggles, this plays a crucial role in shaping and re-shaping the global governance of the IP as a whole, including the GI. In a country like India, the GI registration offers the following benefits to the owner;
a. Full legal protection within the country
b. Prevents unauthorised use of already registered GIs by any others
c. Helps the registered owners apply for legal protection of their GIs.
This Act provides the GI owners both protection and extension of their opportunities to the WTO members. This is very unique about the TRIPS Agreement, which finally underlines the coming of the “one-size-fits-all” global IP governance system for the first time. Unlike the GI protection and registration in other developing nations, the Indian Act is widely considered as comprehensive in nature. The reason behind in making such a claim is that the Act encompasses the protection of all agricultural, natural and manufactured goods in India. Considering the wide variety of goods that deserve to be included in the GI, the Act is supposed to facilitate a large number of stakeholders to come forward for protection in future. Section 11 of the Act states that any association of persons, producers, organisation or authority, established by or under the law can apply for registration of a GI in India. The period of GI registration is ten years as of now in India, but it can be renewed for another ten years. If a registered GI fails to get renewal, it has to be removed from the GI Registry, which is located in Chennai. The GI Act is administered by the Controller General of Patents, Designs and Trademarks, who is also known as the Registrar of GI in India.
When it comes to the protection of wines and spirits as mentioned in the TRIPS Agreement, the Indian Act extends it to include goods of national interest on a case by case basis. Another important aspect of the Indian Act is that it prohibits the registration of the GIs as trademark. Basically, it is an attempt to stop anyone to appropriate anything available in nature and register the same as trademark. Thus this part of the Act clearly shows its intent to prevent any kind of confusion that can be created by registering the GI of a particular product as trademark. Further Section 24 of the Act absolutely prohibits the transfer of the ownership of GI to any other person.
The benefits of the GI protection can be gauged from various studies across the world. A consumer survey undertaken in the European Union in 1999 by the WTO found that 40 per cent of the consumers would pay a premium of ten per cent for products having definite origins. Another study conducted by the United Nations Conference on Trade and Development (UNCTAD) in 2008 in India revealed that GI-registered agricultural products can demand a price premium of 10-15 per cent whereas for non-agricultural products, it can fetch five to ten per cent. This shows how GI-originated goods can be at a higher demand than the goods not having its original source. It has been observed that in India the maximum number of GIs are registered from the textile sector followed by horticulture. Rest of the goods covered for GI registration are tea, incense sticks, metal mirror, essential oil, soap, handicrafts, wet grinder, painting, etc. Thus, handicrafts, agricultural products, food, and finally, manufacturing items are being registered under the GI Act in India. Though the first GI registered in India was in 2004, today, the trend is in the upward direction. The Sothern States like Karnataka, Andhra Pradesh, Kerala, and Tamil Nadu take the lead in the GI registration. However, the other States like Assam, West Bengal, Uttarakhand, Jammu & Kashmir, Odisha, Uttar Pradesh, etc, which are rich in various types of GIs, are also making their mark in this segment of IP registration and protection. With the new Act in place, the GI registration is likely to take pace and it will have serious positive impact on the locals of some of the specific regions of the country.
Nevertheless, the GI registration and protection can definitely provide rich benefits to the people of developing nations like India. Such nations can extend this benefit to their large sections of indigenous people who have been practicing their traditional knowledge for centuries without any protection. This also prevents any single individual to become the sole repository of indigenous knowledge. And now with registration this kind of knowledge can easily come under collective rights of the community. However, collective rights may create problems as it does lead to legal claims from various sources. Thus ascertaining the real owners of the GI always remains a daunting task, although the place of origin of a particular good is well-known in general. There are no ends of counterclaims in this arena. Another problem is that there is no uniformity maintained in regard to the registration of GIs in the name of Government or Government bodies across the country. This creates more confusion than benefits or rather discouraging more people to register GIs in India. It is also felt that GIs may eventually exclude many people from enjoying the benefits which they have been doing for generations without having any legal barriers. With advanced nations like America, Japan, Australia, Canada, Germany, etc, vying for a more exclusive protection of GIs and other IPRs, even beyond the platform of the WTO, the developing countries may have to be happy with very little of what they can protect. Some rich firms with better bargaining powers from the developed nations may likely to exploit the benefits of the GI. Then the very purpose of the GI i.e. “not to create monopoly”, will be lost forever. Thus, the Government, along with various other civil society organisations and the non-governmental organisations, must keep a close watch on the registration of GIs. The post-registration benefits must really flow to the needy.
(The writer is Senior Editor, The Pioneer)