Geographical Indication Tags as Intellectual Property in India

Author: Sara Sharma, University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University.

This article discusses the various provisions, procedures, case studies and varieties of Geographical Indication (GI) tags in India. In the modern era, India is one of the most prominent and impactful countries in the market in the present era where globalisation and liberalisation prevail. Therefore, it has been equally important to focus on preserving and promoting the interests and products of the local market due to the presence of international pressure and competition being faced by the various rural products. For such protection, the concept of GI tags has gained more popularity.  A geographical indication is a sign that indicates the geographical origin of a product. 

Registered under the Geographical Indications of Goods (Registration and Protection) Act 1999, GI tags are known to provide local communities with exclusive rights to preserve their cultural heritage and promote economic growth. By preventing unauthorized usage and plagiarism of local products such as Darjeeling tea, Pashmina wool and Banarasi sarees, they protect the authenticity of these products. While there was no formal procedure or legal laws in India before 1999 for the protection of these products, they were initially protected by the regional rulers and the laws enforced by them. However, with the change in eras and the advancement that happened due to the various cultural and geographical advancement, it was necessary to enact an Act that guaranteed maximum protection to the producers to protect their products and curb the fake products existing.

In the modern era where globalization and liberalisation prevail, international players are finding ways to reach every corner of the world. Distances and boundaries are proving to be increasingly permeable with the seamless availability of goods and services. At such a time, globalization is also affecting the production of rural products, which in turn affects the livelihoods of local communities. Rural products are under great threat and some are on the verge of being perished due to financial constraints and unsustainable revenues. Local products now face the risk of losing their unique identity compared to global competitors who have globally recognized brand names. There is a need for local products to be recognised globally. Geographical indications are one of the solutions.

A geographical indication is a sign indicating the origin of a product. Its origin is due to various geographical and environmental factors, be it human, natural or a combination of both, and gives the product a particular quality, reputation and characteristics. Geographical indications are considered "traditional brands" because they are linked to the history and customs of the region. These products are not produced according to market needs or at the initiative of a company. Apart from that, they can also be found in places where communities have developed them over the years. Thus, GIs are a new form of intellectual property law.

GI Tags, Globalization, Intellectual Property.

With the aim of safeguarding the authenticity of rural products, geographical indications are gaining importance, especially in developing countries. A geographical indication is a signature that confirms the authenticity of a product as well as the origin of a product with unique characteristics. According to the TRIPS Agreement, geographical indications are: "indications which essentially indicate that a product has a particular quality, reputation or other characteristic and which are produced in a region or place within the territory of a Member State or within that region, and which can be traced "to their geographical origin", i.e. only products with origin of a particular place, with a particular reputation or characteristic or manufactured/produced by a particular community can receive the seal of approval. Thus, geographical indications are a tool to promote goods from a particular region.

Section 2(e) of the Geographical Indication of Goods (Registration and Protection) Act 1999 defines ‘geographical indications’: “An indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a county, 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 the case where such goods are manufactured goods one of the activities of either the production or of processing or preparations of the goods concerned takes place in such territory, region or locality, as the case may be.”

Products from geographical regions were already popular in the Middle Ages, when there was no proper legal protection for trade. People from Europe and other parts of the world wanted to buy them because of their regional characteristics, such as spices in India and tea in China. Originally, GIs were protected by the rulers of the respective regions and the laws they passed. Some of the rules for GIs date back to the 14th and 15th centuries in European countries such as the UK and France. The corresponding rules for GIs were established in the second half of the 20th century. France is the only country that introduced a comprehensive system of protection for geographical indications in the 20th century. Much of this system was incorporated into the drafting of national and international treaties. Before the 20th century, the World Intellectual Property Organization (WIPO) handled only three multilateral agreements on the protection of geographical indications. The two parameters established by WIPO to identify geographical indications are "indication of origin" and "appellation of origin".

Prior to the GI Act, 1999, India had no formal procedures or laws to protect manufacturers of products made or produced in the geographical regions of India. Since then, the judiciary and government have actively sought to stop individuals from illegally exploiting GI products. Hence, the GI Act enactment ensures maximum protection for manufacturers to protect their products and curb counterfeiting. This in turn leads to improved socio-economic status of people in rural areas. In Mohan Meakin Breweries Limited v. Scotch Whisky Association in 1980, the brand name "Highland Chief" was used in connection with a product described as "malt whisky" with a motif of the head and shoulders of a Scottish gentleman wearing a feathered bonnet and plaid or tartan pattern. This would create the impression that the product used was of Scottish origin and thus likely to mislead or confuse unsuspecting purchasers in India. The Delhi High Court refused to allow the applicant to register the whisky as a trademark. In another case, namely Scotch Whisky Association v. Pravara Sahakar Karkana in 1991, Justice D. R. Dhanuka ruled that the Scotch Whisky Association had succeeded in conflating the words "blended with Scotch" with the word "drum beater" in the defendant's trademark, which includes a logo of a Scottish drummer wearing a kilt and tartan.

1. Agricultural Products: Darjeeling Tea (West Bengal), Basmati Rice (North India) , Nagpur Oranges (Maharashtra), Alphonso Mangoes (Maharashtra).

2. Handicrafts: Banarasi sarees and Brocades (Uttar Pradesh), Madhubani Paintings (Bihar), Kancheepuram Silk (Tamil Nadu), Kashmir Pashmina (Jammu and Kashmir).

3. Floriculture: Nilgiri Mountain Bluebell (Tamil Nadu), Sikkim Cymbidium Orchids (Sikkim)

4. Spices: Malabar Pepper (Kerala), Coorg Orange (Karnataka), Naga Mircha (Nagaland)

5. Wines and Liquors: Feni (Goa), Mahua (Central India)

6. Textiles: Patola Sarees (Gujarat), Chanderi Fabric (Madhya Pradesh), Ilkal Sarees (Karnataka)

7. Natural Goods: Kashmir Saffron (Jammu and Kashmir), Makrana Marble (Rajasthan)

   Allahabad Surkha Guava (Uttar Pradesh)

8. Food Products and Beverages: Tirupati Laddu (Andhra Pradesh), Ratlami Sev (Madhya Pradesh), Hyderabadi Haleem (Telangana), Bikaneri Bhujia (Rajasthan)

9. Crafted Goods: Mysore Silk (Karnataka), Bhagalpur Silk (Bihar), Solapur Chaddar (Maharashtra)

   
   

The Basmati rice and Darjeeling tea disputes are the most significant cases cited in relation to the enactment of the Geographical Indications of Goods (Registration and Protection) Act, 1999. The Act contains specific rules for the registration and protection of Geographical Indications. The Act is administered by the General Controller of Patents, Designs and Trademarks. The General Controller is also known as the Registrar of GIs. The GIGA pursues three main objectives: (i) Protection of GIs of goods within the country may in turn protect the interests of manufacturers of such goods (ii) Prevent misuse of GIs by unauthorized persons and mislead consumers (iii) Contribute to the economic prosperity of the nation through promotion of GIs in the commercial market. The Indian GIGA Act provides for multilateral registration of GIs including those owned outside India.

In India, there are four types of GI applications which can be proceeded with.

1. Ordinary Application: This is an application which is filed for the registration of a GI of India.

2. Convention Application: Applications for registration of a geographical indication from a convention country i.e. a country or group of countries that is a signatory or contracting party to an international regional or bilateral treaty, must submit a certificate of registration of the geographical indication in the home country.

3. Single class application: When an application for registration contains a specification for a single class of goods.

4. Multiple application: Application for registration containing a description of multiple types of goods.

The registration of certain geographical indications is restricted by law under Section 9 of the Geographical Indications of Goods (Registration and Protection) Act, 1999. These include:

1. The use of which is contrary to the existing law.

2. Comprising of any scandalous, indecent or objectionable matter.

3. Which comprise of matter that may hurt the religious sentiments of the people.

4. Which may falsely represent the origin of goods from a different geographical territory.

   
   

Contents of GI Application

1. An application for registration of a GI must be submitted in triplicate and must be accompanied by a case report. 

2. Details of any special features and how these criteria are met. 

3. Three certified copies of a map of the area to which the GI refers. 

4. Details of the inspection regime, if any, for regulating the use of the GI in the relevant area. 

5. Details and addresses of all applicants. 

6. Where there are a number of manufacturers, all manufacturers of the goods may be referred to collectively in the application and, if the GI is registered, will appear accordingly in the register. 

7. The individual, association of manufacturers or organisation or authority must submit an affidavit as to how it claims to represent the interests of the manufacturers of the goods in question and how the applicant claims to represent those interests.

The two cases that brought to light the urgency of implementing GI are:

Basmati Controversy

On September 2, 1997, the United States Patent and Trademark Office granted a patent named "Basmati" rice to RiceTec, a US multinational company based in Alvin, Texas. The reason for granting the trademark was that RiceTec claimed that the new variety it developed had superior characteristics to the original Basmati rice that can be grown in certain regions of North America. For several years, they had been using the brand names "Texmati", "Kasmati" and "Jusmati", which they claimed were varieties of Basmati rice. From an Indian point of view, this was totally unacceptable. 

1. The patent grant was invalid. 

2. Selling rice under the name Basmati is not in India's interest as it would be considered a geographical indication in India.

Basmati is a long-grain, aromatic rice variety that has been cultivated for centuries in the sub-Himalayan regions using traditional methods and practices. Therefore, other countries should not be allowed to use the term. Indian Basmati rice is exported to many countries, and the largest demand for this rice was from Europe. Due to the high demand in Europe, tariffs on Basmati rice were very low. However, according to RiceTec Inc., India started its own variety of basmati, but competition between different basmati rice varieties was increasing and India feared losing a large market. RiceTec Inc. argued that the patent was granted for a new "basmati" (strain and grain), which was an improvement over the earlier variety. They also argued that basmati is a generic name for any kind of aromatic rice, and not a generic name for different rice varieties native to India. They argued that basmati has been used for decades as a generic name for different rice varieties, such as "American basmati," "Uruguayan basmati," and "Thai basmati." 

According to them, basmati is not the name of a geographical region, but India argues that the name, reputation, and quality of rice actually depend on its place of origin and that it originates from the Indian subcontinent. Therefore, it should be protected under the TRIPs Agreement. RiceTec Inc. further argued and stated that its product is called "American Basmati Rice" and that while GIs related to wine and spirits are prohibited under Article 23 of the TRIPs Agreement, other products are not. India challenged RiceTec's patent in 2000. The United States Patent and Trademark Office (USPTO) rejected patents granted for just three hybrid basmati grains, rejecting 17 of the total 20 patents asserted by the company. The patent office also explained that patents could be granted for three different varieties of basmati, since unlike champagne, which belongs to a particular region, the term basmati is neither a trademark nor a geographical reference. It also said that basmati is grown throughout the Indian subcontinent and is not confined to any particular region of India. 

Thus, Teksamuthi and Jasmati made their way onto the shelves of US grocery stores in the mid-1990s. This was clearly against India's interests, and when developed countries like the US pressure developing countries to allow them to patent crops in their favour, the developing countries lose the right to challenge the crop patents.

Darjeeling Tea Controversy

Another major issue in India was the incident related to Darjeeling tea. Darjeeling tea is a special variety of tea grown in the Darjeeling district of the state of West Bengal in northern India. The issue affected companies around the world who were selling tea under the brand name Darjeeling, but the tea was not grown in Darjeeling. The original manufacturers of Darjeeling tea lost a large market share because of these fakes that looked like Darjeeling tea. 

As a result, India realized that it was necessary to establish some common rules and regulations to protect the geographical indication globally. Therefore, the Geographical Indications of Goods (Registration and Protection) Bill, 1999 was passed by both the Houses of Parliament in India. This along with the Geographical Indications of Goods (Registration and Protection) Rules, 2002 came into force on 15th September 2003. Previously, there was no legal doctrine that specifically dealt with Geographical Indications or Appellations of Origin. As a result, Darjeeling tea became the first product to receive the GI label in 2004.

India has a significantly large number of GIs across the country. This is mainly a direct result of improved climatic conditions, human capabilities and practices in various states. If properly recognized and protected, GIs can contribute a large part of the revenue for a developing country like India.  India is a signatory to the TRIPS Agreement and is therefore obliged to protect GI marked products. India has adopted the Geographical Indications Act to enforce the GIs. This Act came into force on 15 September 2003 along with the Geographical Indications Rules and has helped to enhance the GI status of many products so far.

The central government has set up a Pan India Geographical Indications Registry in Chennai to enable rights holders to register their GIs. The central government has the opportunity to decide which products should be eligible for a higher level of protection. This approach was deliberately chosen by the framers of the Indian Act to provide stringent protection to GIs of Indian origin guaranteed under the TRIPS Agreement. Registration of GIs is not a mandate in India. If a GI holder is registered under the GI Act, they can sue in case of infringement. Once a GI is registered in India, it becomes relatively simpler to get insurance in other countries too. Therefore, in a country like India, protection of GI is necessary and will lead to production of a significant amount of income.

1. Cases Referred

   1. Basmati controversy

   2. Darjeeling tea controversy

   3. Mohan Meakin Breweries Ltd. v. The Scotch Whiskey Association

   4. Scotch Whisky Association v Pravara Sahakar Karkhana

2. Statutes Referred

   1. GI Act 1999