Makhan Saikia
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 India?
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.
(To be continued)
