The never-fade radiance of Kanchipuram silk, the fragrant liquid gold of Darjeeling tea, the unmistakable scent of Mysore sandalwood and the distinctive, delicate flavour of basmati rice—as Indians, we’ve appreciated the unique experience that these speciality products provide. Over time, they have also garnered an international cachet and a loyal following across continents. In the age of the global village, unfortunately, they also give rise to copycat “me-too” products that cash in on the reputation and popularity of these products (“Kasmati” rice, anyone?). The law of geographical indications aims to protect the goodwill built up by the distinctive products of a region over a period of time.
Geographical Indications (GIs) of goods are recognized as a type of intellectual property right (IPR). Simply put, intellectual property law is an area of law relating broadly to the creation, use and exploitation of mental or creative labour. This general area of law includes the well-known, traditional IPRs such as patents, copyright and trademarks, as well as some less recognized and more recent forms of IPRs, such as GIs.
GIs are included as IPRs under the Trade Related Aspects of Intellectual Property Rights or Trips Agreement, as well as the Paris Convention for the Protection of Industrial Property (India is now a party to both).
While many speciality Indian products have historically enjoyed worldwide recognition, India’s proactive stance towards their statutory protection through GIs is fairly recent, and the Geographical Indications of Goods (Registration & Protection) Act, 1999 (which came into force with effect from 15 September 2003), marks an important milestone in this recent policy of the Indian government.
GI refers to the representation of the special qualities of a product linked to a region and can take the form of words, phrases, symbols or iconic emblems. They may or may not include the name of the place or region. Iconic place-specific GIs, such as the appellations Swiss chocolate, Scotch whisky and Darjeeling tea, exist alongside equally well-recognized GIs like basmati rice that do not indicate the region of origin. Once such a word, phrase or symbol is recognized as a geographical indication, producers of similar products in any other region may not use it to market their goods. Thus, the association of Scotch whisky makers was able to bring a successful action against the use of the trademark “Peter Scot” by Khoday Distilleries for whisky manufactured in India, on the grounds that it would mislead consumers as to the place of origin of the product.
While typical IPRs (such as patents and copyright) protect the profits earned from novelty and inventiveness, GIs go in a different direction, protecting not novelty but the traditional knowledge and skills associated with certain products, which are typically passed down through generations, and which have a strong link with the underlying geographical territory. Further, where the classical IPRs hinge on exclusivity, that is, a private monopoly right (reflected in the power of the right-holder to prevent access to the patented/copyrighted/trademarked product), GIs are collective, non-exclusive, public rights shared by all the producers of a particular product in the relevant region. Further, unlike traditional IPRs that tend to be time-bound, GIs subsist as long as the conditions underlying the unique qualities of the product continue to exist in the region of its origin.
Internationally, the initial evolution of GI as intellectual property has been traced to certain European economies that depended substantially on agricultural goods. In the present day international regime for GIs, the Trips Agreement is widely considered to be the most influential treaty for the simple reason that all members of the World Trade Organization (WTO) are obliged to be a party to it.
In India, the evolution of GI protection can be traced to India’s accession to WTO (and by extension, the Trips Agreement) as well as to a spate of highly-publicized cases of “biopiracy”, whereby attempts were made to obtain IPRs on certain traditional Indian products/knowledge in various international jurisdictions. One well-known instance was that of RiceTec, a small Texas-based corporation, attempting to register the trademark “Texmati” for various foods, including US-grown rice lines, in the UK Trade Marks Registry.
The Indian government put up a spirited challenge, citing the existence of basmati as a well-recognized product associated with certain regions in India, thus making it eligible for GI status. RiceTec eventually withdrew its application. However, RiceTec already had a trademark registration under “Kasmati” for basmati rice in the UK.
Putting together another comprehensive challenge to this registration on the grounds of basmati being an existing GI, the Indian government succeeded in forcing RiceTec to voluntarily surrender the “Kasmati” trademark registration.
The GI Act has led to the establishment of a GI Registry at Chennai, overseen by the controller general of patents, designs and trademarks of India. Registration under the GI Act is valid for a period of 10 years, after which it is required to be renewed.
Once a GI is registered in India, it becomes relatively easier to seek its protection in other countries, particularly the member countries of WTO.
As the statutory protection to GIs in India is still relatively new, it is likely that various unaddressed issues will be discovered that may require the Indian law to be enhanced.
Till date, however, producers of close to 30 regional specialities have registered with the Indian GI registry, including the producers of Darjeeling tea, Kanchipuram silk, Mysore silk, Chanderi saris, Mysore sandalwood oil and bidriware. It remains to be seen to what extent the Indian GI law is successful in protecting India’s popular traditional products in the international market.
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This column is contributed by AZB & Partners, Advocates & Solicitors.