GEOGRAPHICAL INDICATIONS-

INTERNATIONAL & NATIONAL PERSPECTIVE WITH SPECIAL

REFERENCE TO KERALA

BY VIDYA MENONROLL NO:742

LLM -TRADE AND INVESTMENT LAW

OVERVIEW

CHAPTER 1- INTRODUCTIONCHAPTER 2- CONCEPTUAL ANALYSIS AND

EVOLUTION OF GEOGRAPHICAL INDICATIONSCHAPTER 3-PROTECTION OF GEOGRAPHICAL

INDICATION- AN INTERNATIONAL & NATIONAL PERSPECTIVE

CHAPTER 4-PROBLEMS & CHALLENGES OF GIs IN INDIA IN THE LIGHT OF CASE STUDIES

CHAPTER 5-GEOGRAPHICAL INDICATIONS IN KERALA- AN EMPERICAL STUDY

CHAPTER 6- CONCLUSIONS & SUGGESTIONS

STATEMENT OF PURPOSE

This paper examines the scope of legal provisions at the international and national level, specifically the TRIPS and The Geographical Indications of Goods (Registration and Protection) Act, 1999 so as to point out the lacunas and inefficiency in the prevailing laws relating to the protection of geographical indications.

Further, it analyses the problems and issues pertaining to the proper enforcement of laws particularly within the State of Kerala so as to suggest measures for improvement of the prevailing conditions ensuring higher level of protection to G.Is.

STATEMENT OF PROBLEM

The benefits of G.I such as brand recognition, exposure, increase in sale do not percolate down to the people who are actually involved in the production or manufacture of the product.

Lack of awareness among the people as well as the law enforcement officers about G.I and its prospects.

Higher cost of production results in higher price for the product.

Lack of decent pay force people to hunt for jobs that fetch better income.

RESEARCH OBJECTIVES

To analyse the concept and scope of geographical indications. To trace out the evolution of geographical indications and their

legal protection. To examine and discuss the protection of geographical

indications at the international and national level along with the recent WTO negotiations on improving protection for geographical indications.

To identify and assess the problems and challenges of G.I in India in the light of case studies.

To study and explore various geographical indications within the State of Kerala.

To recommend and suggest measures to bring about improvements to the field of geographical indications in India.

RESEARCH QUESTIONS

What is a G.I? For what type of products can G.I be used? Why is here a need for the protection of G.I?

How did the concept of G.I evolve? What were the legal measures to protect G.I before the enactment of TRIPS?

How is G.I protected internationally? What are the salient features of Art 22 and 23 of TRIPS? Whether there exist any inadequacies in Art 22 of TRIPS? If yes, what are they? And how can the same be remedied? What are the recent WTO negotiations in relation to improving protection for geographical indication?

What is the law governing G.Is in India? What are the salient features of the Act? What are the steps and procedures involved in registration of a G.I? Whether registration is mandatory? If yes, explain. If no, justify. What are the benefits of registration?

What are the prospects and challenges of G.I in India? When is a registered G.I said to be infringed? What there exists any legal provisions against infringement? If yes, what are they?

What are the products for which G.I has been obtained within the State of Kerala? What are the problems and challenges faced by the Keralites in relation to registration of G.I? What are the prospective products in line for G.I registration in Kerala?

Whether the enforcement of post G.I measures has been successful? If yes, justify. If no, what are the inadequacies and how can the same be remedied? Whether any measures can be adopted by the government/voluntary organisations in promoting awareness of G.I and its registration? If yes, what are they?

HYPOTHESIS

1. The benefits of G.I tag accrue more in favour of big traders and intermediaries.

2. Proper guidance and awareness programmes can positively affect the enforcement of laws

3. Provision for decent pay can enhance the number of people engaged in farming, weaving and manufacturing processes, preserving the production/manufacture of the traditional G.I products.

RESEARCH METHODOLOGY

The methodology adopted in this study is Empirical and the Researcher has used Analytical method for completing the Research.

The subject has been analysed in the light of various provisions under the Conventions, Treaties and Agreements administered by WIPO, statutory provisions and judicial pronouncement. Various books, journals, magazines and websites have been referred for the collection of the data.

Further, the researcher used questionnaire and interviews as data collection methods for the empirical study.

GEOGRAPHICAL INDICATION- THE CONCEPT

A geographical indication is basicallya sign or a symbol used on products that have a specific

geographical origin & possess such features or qualities or reputation

that are due to that place of origin.Since the quality or characteristics is dependent

on the geographical place of production, there is a direct link between the product and the region

DEFINITION-TRIPS

Article 22 (1), TRIPS “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 characteristic of the good is essentially attributable to its geographical origin”

As such to qualify for protection as geographical indication, an indication must:

Identify the goods and its area of geographical origin Possess a given quality, reputation or other

characteristics, which Is essentially attributable to its area of geographical

origin

DEFINITION -THE GEOGRAPHICAL INDICATIONS OF GOODS (REGISTRATION AND PROTECTION) ACT, 1999

Sec 1(e), “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.”

TYPE OF PRODUCTS FOR WHICH G.I CAN BE USED

Section 2(f), G.I ACT 1999 defines “goods” to mean any:

agricultural goods; natural goods; manufactured goods or; any goods of handicraft or of industry and foodstuff

64%

26%8% 2%

Handicrafts

Agricultural

Manufactured

Foodstuffs

EXAMPLES OF GI

National Level

•Kancheepuram Silk•Madhubani paintings•Alleppey Coir•Malabar Pepper•Blue Pottery of Jaipur•Kashmir Pashmina•Bikaneri Bhujiya•Agra Petha

International level

•Roquefort Cheese •Darjeeling Tea•Bordeaux wine•Idaho potatoes•Jamaica Blue Mountain Coffee•Champagne•Tequila

PURPOSE OF GI REGISTRATION Confers legal protection. Prevents unauthorized use of a Registered Geographical

Indication by others. Promotes economic prosperity of producers of goods

produced in a geographical territory. Excellent tool for the regional or community based economic

development. Protection of Traditional Knowledge& community rights. Boosts the export. Serve as source identifiers for consumers. Helps producers

develop consumer loyalty. Helps the consumers to associate a level of quality with the

product.

EVOLUTION OF LEGAL PROTECTION SYSTEM OF GEOGRAPHICAL INDICATIONS At global level, prior to TRIPS, no multilateral agreement dealing

with the protection of GIs as such. Indication of source Paris Convention (1883): Protection against False

indication. Madrid Agreement (1891): False and deceptive

indication. Appellation of origin Lisbon Agreement (1958): Provided protection of

appellation of origin and their international registration. Geographical Indications TRIPS Agreement (1994): First International treaty bound

to protect GIs and to enforce its application. 

SCOPE OF THREE LEGAL CONCEPTS

INDICATION OF SOURCE Any symbol or geographical

name Not conditional on link

between geographical origin and product characteristics

APPELLATION OF ORIGIN Only geographical names (not

other symbols) Conditional on link between

geographical origin and quality/other characteristics (not reputation) of the product.

GEOGRAPHICAL INDICATIONAny symbol or geographical

nameConditional on link between

geographical origin and quality/reputation/other characteristics of the product.

PROTECTION OF GIs –AN INTERNATIONAL PERSPECTIVE

ARTICLE 22G.Is in general

ARTICLE 23Wines and Spirits

ARTICLE 24International Negotiations; Exceptions

TRIPS

SALIENT FEATURES OF ARTICLE 22, 23

• TRIPS provides for a two-level system of protection for G.Is

ARTICLE 22 Applicable to all G.Is irrespective of product categories. Conditional protection: Aims at preventing misuse of

G.Is only when it is likely to mislead the public as to true place of origin of the product or constitutes an act of unfair competition.

ARTICLE 23 Applicable only for G.Is designating wines and spirits. Unconditional protection :Protection is not conditional

on whether the public is misled or whether the misuse constitutes an act of unfair competition.

ONGOING DEBATE AT WTO

Extension of scope of Art 23 to include all categories of products.

Countries opposing extension: Uruguay, Chile, Australia, New Zealand, Guatemala, Canada and Argentina

Countries in favour of extension: India, Kenya, Bulgaria, China, Pakistan, Sri Lanka ,Switzerland, Czech Republic, Thailand and Turkey

The issue constituted an essential part of the ‘Doha Work Programme, 2001’.

However on account of varied perspectives among the WTO members, not much development has been attained in the negotiations as yet.

PROTECTION OF GIs- A NATIONAL PERSPECTIVE

Geographical Indications of Goods (Registration & Protection)Act, 1999

Geographical Indications of Goods (Registration & Protection) Rules, 2002.

Both of which came into force with effect from 15th September 2003.

WHO CAN APPLY FOR REGISTRATION? Any association of persons; or Producers; or Any organization; or Authority established by or under the law. The applicant must represent the interest of the producers. Authorised user.

WHERE TO APPLY? The Central Government of India has established the Geographical

Indications Registry with all India jurisdiction in Chennai. Every application shall be filed in the office of the G.I Registry.

CONTENTS OF APPLICATION

i. A statement as to how the GI serves to designate the goods as originating from the concerned territory of the country/region.

ii. The class of goods to which the GI shall apply.iii. The geographical map of the territory of the country/region/locality in

which the in which goods originate or are manufactured.iv. The particulars of appearance of the GI.v. A statement containing particulars of the producers of the concerned

goods as may be prescribed.vi. Other particulars as may be prescribed such as the that of the

mechanisms to ensure standards, quality, integrity, special human skill involved.

vii. Inspection structure to regulate the use of G.I

DURATION/TERM OF PROTECTION• Initially valid for a period of 10 years after which it can be renewed on the

payment of renewal fees

PROCEDURE FOR REGISTRATION

DURATION: A registered GI Is valid for a period of 10years after which it can be renewed on the payment of renewal fees.

PROHIBITION OF REGISTRATION OF CERTAIN GIs

The use of which would be likely to:- deceive or cause confusion contrary to the law in force

Comprises of:- scandalous and obscene matter any matter likely to hurt religious susceptibilities of any

class/section of citizens of India Determined to be generic names 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.

INFRINGEMENT OF GIs

A registered G.I is said to be infringed if a person, not being an authorized user, thereof:Uses such G.I in a manner so as to indicate or suggest that

such goods originate in a geographical area other than the true place of origin of such goods in a manner that misleads the persons as to the geographical origin of such goods;

Uses any G.I in such manner so as to constitute an act of unfair competition including passing off in respect of registered G.I;

Uses another G.I to the goods which, although literally true as to the territory from which the goods originate, falsely represents that the goods originate in the territory in respect of which such registered indication relates.

RELIEF FOR INFRINGEMENT OF GIs

CIVIL REMEDIESRelief may be granted in the form of

Injunction (interim and permanent)either damages or account of profits anddelivery-up of the infringing labels and indications

for destruction or forfeiture of goods that bear false representation of an existing G.I.

◦Case laws: Scotch Whisky Association v. Pravara Sahakar

Karkhana Ltd Scotch Whisky Association & Others v. Golden

Bottling Limited

• CRIMINAL REMEDIESOFFENCE PUNISHMENT

falsifying and falsely applying GIs to goods, or

selling goods to which false GIs is applied

Imprisonment 6months-3yrs and a fine of not less than Rs 50,000 but may extend to Rs

2,00,000

falsely representing a GI as registered

with imprisonment for a term which may extend to 3 yrs, or

fine or both In case a person already

convicted of the above offences is again guilty of

any such offence

For the second and for every subsequent offence he/she shall be punished with an

imprisonment for a term not less than 1yr, but which may extend to 3yrs and fine which

shall not be less than Rs 1,00,000 but may extend to Rs

2,00,000

PROBLEMS AND CHALLENGES OF GIs IN INDIA 1. Enforcement of the legal provisions within and outside

India2. Brand building, promotion and marketing3. Registration in foreign countries4. Defining geographical boundaries5. Appropriate identification of goods6. The question of beneficiaries

Case studies Darjeeling tea Basmati rice Payyanur Pavithra ring

GIs IN KERALA

21 products registered as GI.Comprising of around 8.82% of the total GI

registered products in India. Majority-agricultural goods (52.8%), rest handicrafts. Significance of G.I in Kerala

Enhanced its export. Promoted international trade. Contributed in the economic development and

advancement of tourism within the State.

EMPIRICAL STUDY ON THE REGISTERED GIs IN KERALA

UNIVERSE:REGISTERD PROPRIETORS/AUTHORISED USERS OF GIs IN THE STATE OF KERALA

SAMPLE: 30 IN NUMBER

METHOD : SIMPLE RANDOM SAMPLING

Unique features

•Created from a special metal alloy.•Eliminates secondary reflections and aberrations.•Fully handmade and brittle.•Craftsmen use traditional, indigenous methods and materials to produce the reflecting wonder.• Takes several days to months to complete.•Often believed to bring good luck and prosperity.

ARANMULA KANNADI

 The mirror making process

CHENDAMANGALAM DHOTIES & SET MUNDU

Unique features

•Method of production.-hand-woven and require immense skill and effort.•No chemicals used in the manufacturing or processing stage•Handloom industry provides for manufacturing count cotton combed yarn of 120s,100s and 80s. Higher counts ensure that the products do not shrink on washing.

KUTHAMPULLY SAREES

Unique features

•Well known for manufacturing finer count cotton yarn of counts 80 and 72. •No bleaching or dyeing involved in the manufacturing process except dyed yarn for the border or cross-border of the sarees. •The yarn used is of natural coloured grey cotton yarn and so the products are eco-friendly causing no harm to the body of the users

VAZHAKULAM PINEAPPLEUnique features

•Well known for its delicious taste, aroma and flavour. •Fruit is a good source of carotene, vitamin minerals and energy. •The uniqueness is attached to the agro climatic conditions that are prevailing in the region.•FLO standards in cultivation restrict the use of any chemical pesticides banned by WHO.

MALABAR PEPPER AND ALLEPEY GREEN CARDAMOM

Unique features

•Malabar Pepper: The warming spice has got a sharp, hot and biting taste which is its distinct feature•Allepey Green Cardamom: This grade is unique in its colour, size, chemical constituents and oil content•Uniqueness is also attributable to the agro-climatic factors

MAJOR FINDINGS OF THE STUDY

Benefits do not percolate down the line to the actual beneficiaries who are involved in the production of these G.I registered goods.

The main hindrance to effective enforcement of laws is the lack of awareness among the people about the concept of G.I.

Lack of decent pay will result in the labourers opting for jobs with better pay, outcome of which would be shortage in the number of people engaged in the age old profession causing big threat to the production/manufacture of these traditional G.I products.

PROSPECTIVE G.Is IN KERALA

Kozhikodan Halwa Nilambur teak

Guruvayur Pappadam

SUGGESTIONS

INTERNATIONAL LEVEL Establishment of a multilateral system for notification and

registration of geographical indication. Extension of additional protection as under Article 23

protection to all G.I irrespective of their nature.

NATIONAL LEVEL To give legal enforcement power to the Registering authorities

constituted for the purpose under the Central Government. Establishment of a “National watch dog agency.” Adopt measures to educate the producer/manufacturers and

related labourers about the significance of G.I, and to gather them to form a registered society.

Special incentive scheme by the Central governmentAdopt strategies to build reputation and goodwill of the

G.I registered products

REGIONAL LEVELEstablishment of a common facility centre within the

State.Establishment of a common showroom within the State.Initiatives by the State government to conduct awareness

programmes by way of campaigns, seminars and exhibition.

Initiatives by the State government to ensure that rebates are granted to the producers/manufacturers without any time delay.

THANK YOU