GEOGRAPHICAL INDICATION TAGS: PRESERVING THE CULTURE AND TRADITION IN MODERN INDIA By : RAJEEV SAM S.

GEOGRAPHICAL INDICATION TAGS: PRESERVING THE CULTURE AND TRADITION IN MODERN INDIA

 

Authored By : RAJEEV SAM S.

Bennett University, Greater Noida

 

 

ABSTRACT

Geographical Indications (GI) are the tags that has been coined by the government in the year 1999 and we, as a public knows where we should go when the place has famous identification, whether it could be a food item, artwork etc., For example, Kancheepuram silk sarees, Kovilpatti groundnut candy, In a simpler term, the Geographical Indication Tag is a sign that identifies a product as originating in each place, natural, manufactured, handicraft, handloom, etc., This paper discusses various geographical sign tags history, the process of how they could be registered, who should be protected, prevention of the illegal or first copy of the original registered items, as a quality check.

 

People who already know something about the originality but are not educated enough to register themselves as a society or the government-provided scheme to preserve the quality, the makers and the knowledge shall be passed to their legal heirs, maybe the partner of the place of production, who knows the exact raw material, process, and production period.

 

INTRODUCTION

Just like how copyright and other Intellectual property require attention for the person who is skilled at the art, they must be recognized for their work and should deserve novelty. Likewise, GI Tags (Geographical Indication Tags) need to be recognised for various reasons, both individual as well as for the economy and well-being of India. Various art and food products represent India’s long-lived, living culture, and tradition and the people who put their efforts into maintaining the art and food products' authenticity for decades and that deserves certification, novelty, and fame.

 

 

Proving that the people in the origin have this job preserved for centuries and their generations are dedicated to the production of the product is important to secure the GI Tags and the necessary items/tools/machines should be unique so that we can register the GI Tag to the Government. If a product has been mentioned in its originality from the house, it does not always tend to be that it is an original product.

 

 It should be taken under some circumstances and the quality shall be reassured and that it is coming from the original makers of it, or it is coming from the originally grown/sown in the place of origin, be it the artworks of Jaipur, can be the Kashmiri wool, often called as ‘Pashmina’. Any kind of artistic work, handicraft or any food product that has been made by the same community for decades, must undergo two important steps to prove its originality. One is the historical Origin. Regarding the documents or the details of the person, they should be the maker.

 

Secondly, it is important to prove that, by the person, it should be produced only in that part of India and should be widely recognized and only that set of tools mentioned by the person making the art must be produced/proved. For example, Kovilpatti Sweet (East Tamilnadu) candy has a unique taste, and no one can make the same taste apart from that place. Few other factors like weather conditions, humidity, soil kinds, wind, and workers who continue to follow the tradition since their birth of theirs.

 

The Geographical Indications of Goods (Registration and Protection) Act, 1999 that protects the GI tags that are registered in India. Registration for GI is not compulsory in India. If the GI tag has been registered, it will afford better legal protection to facilitate the infringement actions[1].

 

HISTORY OF GI TAGS

In the year 1999, in the parliament, Thiru. Murasoli Maran, Minister of Commerce and Industry introduced and then it has been come into force in the year 2002, September 15. From that time, till now, India has been recognizing the GI tags and licensing them to produce only in that region. In the era of Raja Raja Chozhan’ s rule in Tanjore, people used to transport various sculptures, painting works, Tanjore pith works, through Poombuhar sea shore to world countries like Singapore, Thailand, Vietnam, etc., and Tanjore has a unique position in holding in the highest export of art and handicrafts.

 

In the year 1986, the Uruguay Round of the GATT negotiations started, and it precisely developed the India’s policy in it. By the time India Launched its massive economic reforms, in the year 1991, the paradigm has shifted its policy in a way that it defined the Uruguay Negotiations round.

 

 These rounds were well underway, paved its path towards the ‘Marrakesh’ in the year 1994, and establishment of the World Trade Organisation.

 

With its lengthy history of development strategy and restrictive trade policy regime, India has still maintained vigilance and has been a passive participant throughout the early years of the Uruguay round. But Doha wants India to safeguard additional items with GI in addition to their spirits and wines. To strengthen the marketing of their products by more successfully distinguishing them, some nations wished to negotiate the extension of this greater degree of protection to other items. Nevertheless, the rivals of those items intended to resist the shift, and there was discussion over whether the Doha Declaration offered a binding guideline for the discussions.

 

NEED OF PROTECTION OF TRADITIONAL & ARTISTIC WORK SHOULD THROUGH GEOGRAPHICAL INDICATION TAGS

People who are skilled at art and have traditional knowledge does not have enough knowledge about the importance of their work and often raise questions like why we should opt for them, what is the use of the registration and how we will get benefitted as a craftsman, farmer, etc., the location must be so precise to the state, district, area, and taluk. So that the demand for the product rises, and more buyers and sellers are attracted towards the district. In international shipping/export of such arts and crafts, the Central government has brought certain “packing system” regulations, where a unique seal is stamped by the recognized manufacturer/handicraftsmen. And this demand people bring attention to the producers and hence quality and authentic products are being received by the customer, worldwide.

 

 

Its commercial potential plays a major role as the legal protection of GI takes enormous significance. The market competitors who do not have any legitimate rights over the GI might ride free of their reputation without suitable legal protections as they do not have a proper certificate to carry out the trade of GI goods. Such kind of unfair business practices shall result in loss of their revenue, or even a fine for the genuine right-holders of the GI and can mislead the customers. It will also hamper the goodwill and GI’s reputation across India.

 

REGISTRATION OF A GI TAG

To seek the damages or to bring a lawsuit to stop the infringement of an unregistered GI, the person is not allowed to bring a lawsuit, although the registration of the Geographical Indication tags is not allowed in India, but under Section 20 (1) of the GI gives the provision to move forward.

 

By registering a GI, the registered owner gains the authority and user rights to seek redress for the offence that was committed. According to Section 3(1) of the Geographical Indication Act, the GI registration for all Indian jurisdictions is conducted at the Chennai office of the Controller General of Patents, Designs, and Trademarks[2]. Moreover, Section 6(1) requires the upkeep of a GI registry, which may be divided into two components, one of which is specifically related to the registration of GIs and the other of which is related to the registration of authorised users, as stipulated by Section 7(1) of the Act. The Registrar's categorization of the "class of products" for the registration of GI goods under Section 8 in line with the international classification of goods, as it includes all goods submitted to him, that are registered. An application may be made for registering a GI tag for different classes of goods and a registration fee shall be paid to the government with respect to each of such class of goods registered. In India, a GI may at first be registered for a period of 10 years and it shall be renewed after by paying the extra fee.

 

Indian law place certain restrictions in that a registered GI are not a subject matter of assignment, transmission, licensing, pledge, mortgage, or any other agreement[3]. however, the government has made GI tag registration not compulsory. Before filing for a GI tag, a person must be required to fulfil that the so-called Indication comes under the ambit of Section 2(1)(e), which defines “Geographical Indication”, The Controller General of Patents, Designs, and Trademarks is based in Chennai, where the Geographical Indication (GI) registration is carried out for all India Jurisdictions, as provided for in Section 3(1) of the Geographical Indication Act. Additionally, Section 6(1) of the Act requires the maintenance of a GI register, which can be categorised or segregated into two portions, one of which is specifically related to the registration of GI's and the other to the registration of authorised users, as stated in Section 7(1) of the Act. The Registrar's classification of the 'class of products' in line with the international classification of goods for the registration of GI goods under Section 8, as it is constituted of all.[4]”

 

Step 1:

Filing Application:

The person who is in the interest of filing for a GI tag, should represent themselves by the organisation of concerned goods, or attorney for the GI tag registration/recognition, and should file an affidavit on how the applicant claims to represent their Interest.

Few rules under the government in the filing of the application for the tax payment of GI goods, that must be made triplicate and the same shall signed by the applicant or his representative, and it must be supported with a case statement. Minimal information, such as particular qualities and how those criteria be maintained, must be mentioned in the above application. First of all, a certificate copy of 3 mentioning the place in the map shall be submitted and all applicants or the community shall together submit the form with the address, and the collective producer’s reference must be made in the application in the aforementioned form on the GI Tag and if the goods are registered, it shall be indicated accordingly in the register of documents containing other GI goods as ‘class of goods’.

 

Step 2 and Step 3:

Preliminary scrutiny and examination:

The preliminary scrutiny and examination will be conducted once the application for any deficiencies, lack of information or other evidence that are not satisfactory.  The same within one month of intimation of such regard, the application should remedy the same, and if it is not communicated, it will be cancelled. This is assessed by a Consulting group of experts in the field, who has immense knowledge of GI tags and other aspects of Intellectual Property laws.

 

 

Step 4:

Show Cause Notice:

The letter of communication will be received by the applicant through objection letter, where the registrar, if not satisfies the information provided or any overlapping of previously registered GI Goods, shall be returned or cancelled until further changes. After such communication from the register, the applicant must respond within 2 months or apply for a hearing, or he made within one month of such notice make a request[5].

The request shall be made within 2 months or apply for hearing date, after such communication from the registrar of Geographical Indication Goods, or he shall request such notice make a request. The registrar also has the power to withdraw the application, if it is accepted in error, after audi alteram partem[6].

 

Step 5:

The geographical Indications journal:

The registrar, within 3 months of the further changes made, shall be accepted and the same shall be published in the Geographical Indication Tags journal.

 

Step 6:

Opposition to Registration:

The opposition can be filed within 3 months of notice if that person thinks that a part of the GI or the whole belongs to their work or community. It shall be further extended by a month upon request after published in the journal and necessary documents shall be submitted. The counterstatement that is irresponsive by the side of the registrar means that they do not have a dispute against the opposition, and he shall be deemed to have abandoned this application, that will lead their respective evidence by way of affidavits and supporting documents like authenticity, or the speciality of the Goods.

Step 7:

Registration:

The Geographical Indication Tag application has been accepted and the registrar shall give the date of filing and the date of registering the application, and an authenticity certificate, which proved the GI goods sales and production made exclusive only to the said community.

 

The Geographical Indications Act includes provisions for the validity of registered GIs, which are valid for 10 years and can be renewed upon payment of renewal fees. The Act also provides additional protection for notified goods. To be eligible for registration under Section 2(1)(e) of the GI Act 1999, a Geographical Indication must satisfy the conditions laid out in Section 9. These conditions prohibit the registration of GI tags if their use causes confusion or is likely to deceive, if they contain obscene or scandalous matter, if they are determined to be generic names or indications of goods, or if they falsely represent the origin of the goods.

 

In a landmark case, the authenticity of rasgulla, a famous sweet from both West Bengal and Odisha, was disputed. It was claimed to have been invented by confectioner Nabin Chandra Das in the Holy City of Puri in Odisha during the 13th century CE.

 

The case was decided in 2017, with West Bengal ultimately being awarded the GI Tag for Rasgulla. Few GI tags across India are Jammu & Kashmir’s ‘Shufta’, Himachal Pradesh’s ‘Babru’, Uttarakhand’s ‘Bal Mithai’, Punjab’s ‘Pinni’, Haryana’s ‘Khoye ke laddoo’, UP’s ‘Guijya’, Rajasthani ‘Ghevar’, Gujarat’s ‘Basundi’, Bihar’s ‘Thekua’, Jharkhand’s ‘Khaja’, Assam's ‘Til Pitha’, Sikkim ‘Sael roti’, Arunachal Pradesh’s ‘Khapse’, Meghalaya’s ‘Pukhlein’, Tripura’s ‘Avan Bangwi’, West Bengal ‘Rasgulla’, Nagaland’s ‘Nap Naang’, Mizoram's ‘Koat Pitha’, Madhya Pradesh, ‘Mawa bati’, Odisha’s ‘Chhena Poda’, Telangana's ‘Qubani ka meetha’, Andhra Pradesh ‘Pootharekulu’, Tamil Nadu ‘Payasam’, Kerala ‘Ilayappam’, Goa’s ‘Bebinka’, Karnataka ‘Mysore Pak’, Maharashtra ‘Modak’ are some of those food items which got the GI tag registration for exclusiveness.

 

LEGAL PROVISIONS FOR GI

In the ancient past, Geographical Indication (GI) tags prevailed as the primary designation for products and were segregated accordingly. However, with the development of trademark law, at least in common law countries, the use of geographical names for trademarks became possible only upon proof of acquired distinctiveness. On the other hand, civil law countries provide strong protection for GIs. The reason for this may be that in European Union countries like France, the major industry is wine and cheese, which has high economic overtones on the intellectual property policy. Unlike a trademark, which usually protects the goodwill offered by a specific individual or entity, a geographical indication is a collective right. Each producer established in the geographical area specified by the GI may use the GI for its products from that region. Trademarks are protected on a first-use or first-file basis, depending upon the jurisdiction, whereas a GI is assigned based on who has the better right to it in the form of authenticity.

 

Article 24 lists out the circumstances in which a member does not have to recognize a GI. The main provision dealing with conflicting GIs and trademarks is Article 24(5). This provision provides four cases where an existing trademark is identical or like a GI, but the product is not necessarily of the same type. It can coexist with the Geographical Indication tags if the trademark is not meant to be misleading to the public.

 

Therefore, according to TRIPS, some concepts have been interpreted in Article 16(1) of the TRIPS agreement as providing absolute exclusive rights to a trademark owner.

 

The Scotch Whisky Association, a corporation constituted under the Companies Act of the United Kingdom with the goal of preserving and promoting the interests of the Scotch whisky trade, sued Pravara Sahakar Shakar Karkhana Ltd.,[7] for selling a locally produced product called "Scotch whisky" in India. The plaintiff argued that this use of the term was misleading and amounted to passing off their product as genuine Scotch whisky. The court decided in favour of the plaintiff and ordered the defendant to refrain from using the name "Scotch whisky" in reference to their goods. In this case, the plaintiff, Scotch Whisky Association, had sued the defendant, Pravara Sahakar Shakar Karkhana Ltd., for selling a locally produced product under the name of "Scotch whisky" in India, which the plaintiff claimed was misleading and amounted to passing off their product as genuine Scotch whisky.

 

The court held that the term "Scotch whisky" was a protected geographical indication under the laws of the UK and the European Community, and that the defendant's use of the term in relation to their product was likely to mislead the public into thinking that it was genuine Scotch whisky. The court granted an injunction restraining the defendant from using the term "Scotch whisky" in relation to their product. Injunction was finally granted by the court, restraining the defendant from using the term “Scotch Whiskey” in relation to that product sold across the world.

 

The case is significant as it established the principle that geographical indications can be protected under Indian law, and that unauthorized use of such indications can be considered a form of passing off. The Scotch Whisky Association (SWA) had registered Scotch whisky as a geographical indication, and they act against products that are falsely labelled as Scotch whisky. The SWA is responsible for protecting the Scotch whisky brand worldwide. Another brand, "Scoffi Swordsman," labelled to suggest that it is Scotch, was smuggled into the UK from Italy and is also the subject of legal proceedings.

 

The issues raised were whether the plaintiff had Locus Standi in passing off action against the defendants under the Trade and Merchandise Markets Act, 1958 and whether the delay of the plaintiff in passing off the action against the defendant could disentitle them to interim relief In the UK, there is a product called prohibition whiskey that claims to be a homebrew kit that will enable you to make your whiskey-flavoured drink within 2 to 3 weeks[8]. Clearly, these claims are false, and the authorities are investigating the matter. Chinese companies began making trademark applications containing the word "Glen" for their whiskey. Scotch whisky was an important task at the time, and Tom, aware of the situation, was able to use his contacts to set up several meetings with various Chinese authorities, explain the concerns of the SWA, and demonstrate examples where similar applications have been opposed in other countries. Tom was able to forge strong relationships and provided Lindsay and his team with good, practical, and free advice on intellectual property matters, making the job easier and reclaiming the original authentic Scotch whisky[9].

 

Around 65 GIs of Indian Origin has already been registered with the GI registry. These include GI like Darjeeling (tea), Pochampalli, Ikat (textiles), Chanderi Sarees, Kancheepuram Silk, Kashmir’s Pashmina (shawls), Kondapalli (toys), and Mysore (agarbattis). GI registered during 2007-08 include ‘Muga Silk’ from Assam, ‘Madhubani Paintings’ from Bihar, ‘Malabar Pepper’ and ‘Alleppey Green Cardamom’ from Kerala, ‘Cora Cotton’ from Tamilnadu, ‘Allahabad Surkha’ from Uttarpradesh, ‘Nakshi Kantha’ from West Bengal, ‘Monsooned Malabar Coffee’ from Karnataka and Kerala[10]. There is many more Indian GIs in the line for registration and often the documents are too old for the evidence submission that it is from the authentic side of the production, and some are still pending because of the loss of documents to submit in court.

 

LACK OF POST-PRODUCTION CONTROL

AND TRIPS OPINION

People can be benefitted if they utilize the GI properly as they play a major role in the economic value of that region, and it spearheads the path for growth and development. India, as a developing country, GI acts as an insurance or protection of authentic goods, for the manufacturing happening in the rural region where the producers do not have the financial strength for branding, marketing skills, nor legal awareness. But the GI creates a brand equity for those indigenous producers[11].  It is relevant to mention that the Indian Law provides measures that guarantee the quality control of the goods. Under Section 11 of the Act, it is prescribed that the application for the registration of a GI, whereas the Sub-section 1 states that ‘any association or organisation of producers or person of the goods produced can get it registered by following mentioned specific procedure under Indian law that has been followed and clause 2 of list, components of such application’. Hence it is important to note that the inspection of the structure shall not be considered a sufficient ground for the application adequacy of the GI tag. Current legislative framework has imposed on inspection bodies under this Act, which has a little scope on those scenarios.

 

Under this Act, this has a legislative framework that have a few scopes in its statutory liability imposed on inspection bodies, which has also been said that they have failed to conduct periodic verification of compliance with the product associated.

 

The GI shall be exclusive for the member of the collective group who holds a member that will be accountable for the non-compliance of the said quality standards, and along with that, the course of action shall be provided for the community under S.27 of the Act ‘the cancellation of registration of non-complying member from the list of authorized GI producers[12]. The benefit that economically provide stability to the rapid increase in the turnover of that producers which has increased around 20 crores in the year 2003, as per the report, and 60 crores in 2012. The weaver wages in the textile industry have been spiked to 16,000 rupees per month and the overall living standards and their family well being has been improved which has resulted in children and women having good medical and educational benefits respectively, and pucca houses has been built.

 

The activities in terms of scrutinizing must also be reviewing and regularizing even though no discrimination should be made nevertheless, where the inspection authority or the proprietor of the GI is a governmental body and the academic institutions where they will administer and support which constitute more the half of the total proprietors overall[13].

 

Moreover, the issue of the genericide is that it has been submitted that even though they are under the obligation to enact such regards with respect to the domestic legislations, they have not been included in the roof of the provision as such as it inadvertently affects them. Still, on the other hand, Sec. 9 of the Act, tackles the issue of the genericide in a wide scope of consideration that the goods produced is that has become generic or not. The TRIPS agreement has also obliged that ‘country of origin’ will be considered, but also, the ‘Area of Consumption’ has something to point out that is important, where it has been mentioned in the agreement of Lisbon, was considered equally narrow in its ‘consumption’ part.  

 

We are investigating the possibility that all our traditional agricultural and food goods, which have built a solid reputation in the market, have generic names. This occurred because of our attention to the place of origin; we are likely to discover that the manufacturers in these regions also began making them on a bigger scale and selling them under the label of the "Geographic indication.", a practice which TRIPS is silent about this if the consumers are not misled the market.  In turn, for the consumers they may not understand the significance, as we could take the example of the ‘Rice Tech’ selling the rice named ‘Basmati’ and may well consider the term to be a common or generic name in North America[14].

 

 

 

CONCLUSION

GI, in India, is important, with a treasure to preserve and protect valuable things, especially in the field of agricultural and non-agricultural sectors. Initially, this was just an awareness among producers and traders is low in terms of their social and economic benefits that brings significance as well as some rewards. Now, GI acts as an effective source of development of rural India, since many of the sectors produced are small scale. In India handloom sector also enjoys its own distinctiveness across various states/regions in India. The GI tags now revive their existence and make these sectors as the fuel to their Intellectual Property engines that provide the rural sectors, development, and employment. People are now aware of those authentic products they are buying, but still some characteristics of the products are similar, and that would be a trap and to avoid that kind of trap, government should mandate the registration of the authentic products for betterment of the society/economy.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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[1] The protection of Geographical Indication in India case study on Darjeeling Tea (no date) PDF Free Download. Available at: https://docplayer.net/15051049-The-protection-of-geographical-indication-in-india-case-study-on-darjeeling-tea.html (Accessed: April 3, 2023).

 

[2] Shruti Gulati, geographical indications in India & the case of famous Indian weave: banarasi brocade, ISSN- 2350-0530(O), ISSN- 2394-3629(P)

[3] Supra 2

[4] The Geographical Indication of Goods (Registration and Protection) Act, 1999 Chapter 1, Section 2(1)(e)

[5] The protection of Geographical Indication in India case study on Darjeeling Tea (no date) PDF Free Download. Available at: https://docplayer.net/15051049-The-protection-of-geographical-indication-in-india-case-study-on-darjeeling-tea.html (Accessed: April 3, 2023).

[6] IP firm India, geographical indications filing in India, Geographical Indication Law in India, Geographical Indication office in India, Geographical Indication filing requirements in India, registration of Geographical Indication in India, GI in India. Available at: https://www.ipfirmindia.com/Geogprahical-Indications-12 (Accessed: April 3, 2023).

[7] Scotch Whisky Association vs. Pravara Sahakar shakar karkhana limited. Available at: https://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=311991554000 (Accessed: April 3, 2023).

 

[8] Trademarks act, 1999. Available at: http://student.manupatra.com/Academic/Studentmodules/Intellectual-Property-Rights/Trademark-Act.htm (Accessed: April 3, 2023).

[9] https://indiankanoon.org/doc/72539493/

[10] Admin (2021) Protection of Geographical Indications, Best Intellectual Property Lawyer in Delhi NCR | Top IP Lawyer in India. Available at: https://www.intellectjuris.com/protection-of-geographical-indications/ (Accessed: April 3, 2023).

[11] Sarah Bowen & Ana Valenzuela Zapata, Geographical indications, terroir, and socioeconomic and ecological sustainability: The case of tequila, 25, J. Rural Stud. 108, 108 (2009)

[12] Calboli & Wee Loon, supra-245

[13] Soumya Vinayan, Geographical Indications in India: Issues and Challenges - An Overview, 20 J. WORLD INTELL. PROP. 122 (2017).

[14] Reddy & Chatterjee, supra note 4, at 576.