Geographical Indication
Geographical Indication (GI) signifies to the name or sign, used in
reference to the products which are corresponding to the particular
geographical area or somewhat related to the origin like town, region or
nation. Thus GI grants the rights to its holder which acts as the
certification mark and shows that the specified product consists of the some
qualities and is enjoying good reputation due to its origin from the
specified geographical location. The Trade Related Aspects of Intellectual
Property Rights (TRIPs) Agreement has defined the 'geographical indications
rights' as the exclusionary rights for the indicator which identify the
goods originated within the member nations territories, or area or region of
that territory, where the reputation or other attributes of the goods is
essentially related to the geographic origin of the place. Geographical
indications are the part of the intellectual property law therefore like any
other law the regulation and govern conditions of GI also varies from one
country to another as high differences have been found out in the use of
generic terms across the world. Such case is prominent for food and beverage
which more commonly use the geographic terms. Geographical Indications are
aimed towards identifying the source of the product and is considered as the
valuable business tool.
The global trade has made it crucial of harmonizing the various approaches
and methods which the governments use for registering the GIs in their
respective territories. The first initiative was taken in the year 1883 as
the Paris Convention on trademarks which was followed by the more
elaborative provisions of the Lisbon Agreement in the year 1958 for the
Protection of Appellations of Origin and their Registration. In the year
1994 during the conclusion of the negotiations on the WTO Agreement on Trade
Related Aspects of Intellectual Property Rights all WTO members were decided
to lay down certain standards for the GIs protection in their respective
countries. The Article 22 of the TRIPS Agreement emphasis on the obligations
of the government for providing legal opportunities within their territories
for safeguarding the GI use and curbing its misappropriate use.
Geographical Indication Act in India
In India the geographical indications regime is regulated by the
Geographical Indications of Goods (Registration & Protection) Act, 1999
and the Geographical Indication of Goods (Regulation and Protection) Rules,
2002. However registering of the GI is not compulsory in the India as the
owner of the unregistered GI can also enforce the actions with the help of
passing off against the infringer but it is recommendable to register the GI
as the registration certificate acts as the prima facie evidence in the
court at the time of arising of any dispute and no additional evidence is
required to proof the validity. Examples of some of the popular geographical
indicators are- Basmati
Rice,
Kanjeepuram Sarees, Darjiling Tea. In the
Indian act, geographical indication is used for identifying the goods from a
particular geographical location and its origin. It encircles the
agriculture goods, natural goods and is extended up to the manufacture goods
also. In order to register the geographical indication, the goods should
possess the unique characteristic, reputation with other qualities
attributed to its geographical origin, for e.g, climate, quality of soil,
processing methods etc. Normally the geographical indicators signify to the
rights of community or a group therefore, an individual cannot register
geographical indication on his/her name. The Indian Geographical Indication
Act has established the Geographical Indication Registry, the statutory
body, for completing the geographical indication registration. The body
prepares the Register of Geographical Indications which is prepared in two
parts- Part A and Part B. While Part A consists of the important attributes
of the goods along with the name of the registered owner whereas Part B
details down the various rules which are related to the geographical
indicator authorized users registration.
To register the geographical indication, any organization or association of
people or the statutory authority can apply for the registration. They need
to file the application which should consists of the statement that how the
geographical indications are related to the quality and with other
characteristic features which are the result of the geographical
environment, encompasses of the natural qualities and human factors, unique
methods of production, processing and preparation, which occurs within the
said geographical area. It is required that the class of goods which have
been chosen should be covered under the registration. The applicant is
needed to give the geographical map of the area in which the goods have been
produced along with the descriptory methods of the geographical indicators
appearance of the goods. The applicant can file the single application for
varied classes of goods but separate fees is required to be paid for each
class of goods. However for the registration of foreign indications, the
submitted application should detail down the address of the services which
are situated in the India. The submitted application may either be accepted
fully or conditionally. If the application has been rejected or has been
accepted partially then the registrar is required to record in writing the
reasons of rejection or conditionally acceptance. After the application
acceptance it will be publicized in the Geographical Indication Journal and
within the 3 months of its publication, any person who oppose against the
application and can request for the opposition proceedings. The registrar
will sent the copy of the opposition to the applicant who in turns is
required to counter the statement within 2 months of the receipt of the
opposition copy. But if the applicant fails to comply with the specified
time duration then the application would have been considered rejected.
After the furnishing of the evidence by the applicant, the registrar will
provide a chance to both parties for the oral hearing and after that the
matter will be settled down through the quasi-judicial manner. In case of
the foreign entities who are interested in lodging the opposition, are
needed to submit the security for costs.
The initial registration of the geographical indication holds its validness
for 10 years. The Indian act has given gracing period of 2 years for
restoring back the registration of those geographical indications which have
been canceled due to the failure of paying the renewal fees. At the time of
the geographical indications infringement there are two types of remedies
which have been clearly specified in the act- Civil remedies which cover the
injunction damages, which in turns include the delivery of the infringed
goods for the destructive purpose and forfeiting of the goods which bear
upon the fake representation of the original geographical indication.
However the criminal remedies may include of the punishment to the offender
minimum to 6 months which can extended maximum to 3 years with the minimum
Rs.50,000 fine and maximum to Rs.2,00,000. If the same offense is repeated
in the future again then the minimum sentence becomes of 1 year with minimum
Rs.2,00,000 fine.