ABSTRACT

Geographical Indications (G.I.) is an essential intellectual property right that is used in the sphere of trade to indicate the origin of a product that is unique to the territory or region where it is produced. Goods can be identified as being from a certain place using Geographical Indications (G.I.s). As a result, the products’ location, quality, and reputation are all intertwined. In the setting of information asymmetry, the manufacturer might use this to communicate to customers the credentials of their items.

In India, Geographical Indication (G.I.) has become a major Intellectual Property Rights concern. Manufacturers and producers in that region are granted permission to use that name on their products. Additionally, the G.I. gives them the legal authority to ban the use of a sign or name that does not meet a specified set of standards for that product’s G.I. By September 30, 2020, of 706 G.I. registration applications received in India, 370 items had been approved. Some foreign-registered items were also sold in India. Registrations for G.I. were made for 15 goods from nine different countries.

A well-protected Geographical Indication may be a useful marketing tool because it represents to customers of certain goods and services a verified degree of quality, reputation, and unique qualities. In the absence of legal protection, anybody can apply any geographical indication to any product or service, even if the requirements of the original aren’t met. This might lead to customer misunderstanding and deception.

Weakness in G.I. stakeholders’ knowledge and a lack of quality control measures are to blame for the lack of success. Furthermore, because it is written in the same language as trademark law, the Act favours traders over producers.

This research paper focuses on G.I. registration procedures in India, product status by state and year, the worldwide G.I. landscape, and the numerous G.I. concerns in India.

KEYWORDS

Geographical Indication; India; World Intellectual Property Organization (WIPO); Intellectual Property Rights (IPR); Challenges; Trade; TRIPS Agreement

INTRODUCTION

A geographical indication, also known as a G.I., is a kind of Intellectual Property Right (IPR) that defines a product as having its origin in a certain nation, area, or location within that country, where a given quality, reputation, or other attributes can be directly traceable to its place of origin in that country. When the connection between a location and the things that come from there is so strongly established, any mention of the location will bring to mind the things that were produced there and vice versa. GI serves the following purposes:

• It promotes the goods of producers who are located in a particular
• It indicates the origin of the items.
• It conveys the impression to the customer that the products originate from this region, which is relevant when a product’s quality, reputation, or other attributes are mostly attributed to the location where it was

Geological origin and uniqueness are two of the characteristics of a Geographical Indication, a symbol used on items that are produced only in one geographic area and are guaranteed to be of the best possible quality. There is a wide range of agricultural goods that can benefit from a geographical indication due to their effect on local soil and climate, which can be traced back to their place of origin. In addition to agricultural items, the application of Geographical Indications (G.I.) is not restricted to highlighting the uniqueness of a product attributable to human elements, such as the special traditions and manufacturing skills of a particular product at its source. The Paris Convention for the Protection of Industrial Property (1883), the Madrid Agreement (1891), and the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration was the three primary international treaties prior to the TRIPS agreement (1958)². As a result, items are protected at different levels depending on the TRIPS Agreement’s arbitrary and speculative categorizations. To be sure, the European Union’s impressive negotiation skills are to thank for the inclusion of G.I. in the TRIPS Agreement. As of 1999, India had the first particular law in place to protect and register the Geographical Indication of Goods (G.I.). On September 15th, 2003, the law went into effect.³ The Indian government has created a Geographical Indication Registry in Chennai under the control of the Controller General of Patents, Designs, and Trade Marks to register G.I. s⁴.

Goods that have a distinct geographic origin and are known for their unique attributes or reputation might utilise G.I. as a type of sign. Using a geographical symbol that indicates that a product was produced in a certain geographic location is prohibited by a registered geographic sign. Every time the name of a location is spoken, it brings to mind a certain type of product that is made there and vice versa.

• from India includes items such as Banaganapalle Mangoes, Darjeeling Tea, Arunachal Orange,

Definition of Geographical Indication (G.I.)

Geographical Indication (GI) is defined by the World Trade Organization as “Indications which identify a good as originating in the territory of a member, or a region or locality in that territory, where a given quality, reputation or other characteristics of the good is essentially attributable to its geographical origin”⁵

According to World Intellectual Property Organization, “A Geographical Indication (G.I.) is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. In order to function as a GI, a sign must identify a product as originating in a given place. In addition, the qualities, characteristics, or reputation of the product should be essentially due to the place of origin. Since the qualities depend on the geographical place of production, there is a clear link between the product and its original place of production”⁶ Some Geographical Indications that have been registered in India are mentioned below⁷:

• Chunar Glaze Pottery (Uttar Pradesh)
• Sojat Mehndi (Rajasthan)
• Judima (Assam)
• Harmal Chilli (Goa)
• Munsyari Razma (Uttarakhand)
• Myndoli Banana (Goa)
• Tamenglong Orange (Manipur)
• Kashmir Saffron (Jammu & Kashmir)
• Mizo Ginger (Mizoram)
• Naga Cucumber (Nagaland)

LITERATURE REVIEW

The TRIPS Agreement’s Part II, Section 3 provides for the protection of geographical indications. As with every other part of the TRIPS Agreement, it opens with a definition of the subject matter and the terms under which it will be protected (Article 22.1). If an indication is to be protected, it must⁸

1. identify the good and its place of origin,
2. have a certain quality and reputation, and
3. be mostly due to its place of

On January 31, 2006, Hirwade Mangala provided an update and list of GIs registered in India as of that date. Originally, ‘Darjeeling Tea’ referred to a good fragrant product from North Bengal, from where its name originated and was used to describe tea from Kenya and Sri Lanka. Commercial rice growers in France and the United States are cultivating “Basmati” varieties and trademarking the term “Basmati” in an effort to capitalise on the fame of this well-known geographical appellation. Rice Tec Inc.’s patent on ‘Basmati Rice Lines and Grains’ is a clear example of the misuse of an Indian GI by the Texas-based company.⁹

The Journal of Intellectual Property Rights examined several GI that may be registered as handicrafts. Government assistance for local handicrafts should also be explored, as a source of cash for the local economy. The GI Act has a number of vulnerabilities that might be exploited by GI merchants, according to this research paper. Some sui generis system has been proposed to conserve traditional handicraft knowledge in order to cater to the requirements of local craftsmen.¹⁰

SRELS Journal of Information Management believes that the current G.I. Registry relies solely on geographical location rather than the individual’s ability to perform. Protected goods that are solely the result of human factors are thus unfair and unjust. It is possible for Chanderi Saree weaver to move to a new site and use his expertise to make the Sarees there, but the region is not yet known as a Chanderi Saree weaver. The present state of GI in India has been examined in this study, which looked at registrations up to July 2011.¹¹

From 2003 to 2015, Third Concept 30 examined the present situation of Geographical Indication in Karnataka, India, with a focus on the state. As of November 18th, 2015, a total of 33 GIs have been registered in Karnataka, one of 28 Indian states to do so.¹²

International Journal of Research – Granthaalayah presented the notion of GI in India, as well as its historical context and legal structure. According to this study, which looked at the renowned Indian weave instance of Banarasi Brocade, GI is necessary because “it becomes the selling feature and that quality which distinguishes the commodity from a crowd.”¹³

Product registration under India’s Geographical Indications (GI) system is outlined in an article in the International Journal of Research in Agricultural Sciences. In India, 289 GI tags have been granted for agricultural products, although only 24 of those were issued in Uttar Pradesh.¹⁴

The Origins of Geographical Indication

As recently as the late 19th century, there were rules in place to protect consumers against misleading product details. When a product does not have a certain origin, quality, or link with a certain notion, these rules are frequently used to defend against those suggestions. Trade names and trademarks associated with regionally specific food items are safeguarded by governments. When this happens, governments claim that restricting competition by conferring a monopoly on the use of a geographical indication is necessary to safeguard their citizens’ interests as either consumers or producers.

The Appellate d’Orgine Controloli (AOC) was one of the earliest Geographical Indication methods to be used in France, beginning in the early part of the twentieth century. Items that have been shown to have originated from the specified region and have met the required quality criteria may be granted a government stamp of approval. This stamp provides the consumer with an official certification of the product’s origin as well as the standards it must fulfil. Gruyère cheese, which originates in Switzerland, and a number of wines from France are both examples of items that have registered under “Appellation of Origin.”

India has one of the briskest and most effective mechanisms for GI tagging among the big economies that are still emerging.

There is a long-standing custom in Europe of associating certain food items with particular areas and their place of origin, and geographical indications have been firmly linked with both the idea of territory and Europe as a whole as a unit. In order to ensure the safety of its citizens in general and its government employees in particular, India has enacted a law that is of its kind. The phrase “sui generis” may be translated as “of its own type,” and it refers to rules that are acknowledged on a national level. The “Geographical Indications (Registration and Protection) Act, 1999” (also known as the “G.I. Act”) and the “Geographical Indications (Registration and Protection of Goods) Rules, 2002” are the pieces of legislation in India that are responsible for the protection of geographical indications (G.I. Rules).¹⁵ In order to fulfil the responsibilities that it has agreed to under the TRIPS Agreement, India passed legislation that gives it the authority to enforce its own national intellectual property laws. In accordance with the provisions of the G.I. Act, the Central Government has, as of the 15th of September

2003, set up a Geographical Indication Registry in Chennai.¹⁶ This Registry has authority over the entirety of India, and it is there that rights holders can register their G.I.

Role of WIPO in protecting G.I.

India’s process for formulating national policy was at a crossroads at the same time as the Uruguay Round of GATT negotiations got underway. Due to its longstanding legacy of growth strategy and internal protectionist trade policy, the National Democratic Alliance (NDA) remained a cautious and somewhat unsatisfactory player during the early years of the Uruguay Round negotiations.¹⁷ This was a major shift in Indian policy by 1991 when India launched its large-scale economic reform package when India launched its large-scale economic reform package.¹⁸ Because of this, the World Trade Organization (WTO) could be established in 1994 at the Margakesh conference.

Under the Doha Geographical Indication (DGI), India intended to facilitate a wider range of products than only wine and spirits (G.I.). To some nations, this high degree of security was meant to be used as a bargaining chip for other items, as they believe it will help them stand out from the competition and “belittle” the circumstances of other countries. Some argued that the Doha Declaration does not give a mandate for discussions, and the argument revolves around this issue. Article 22’s existing level of protection, say those who are opposed to its enlargement, is adequate. There is a concern that implementing more security measures will be a burden and hamper legitimate marketing efforts. Other nations, including India, pushed to ‘extend the reach of Article 23’ to include all commodities. However, nations such as the United States, Argentina, Australia, Canada, Australia, Guatemala, Chile, and Uruguay are adamantly opposed to any ‘extension’. Doha’s Work Program included a section on ‘growth.’ Even Nevertheless, there has been little progress in discussions, and implementation remains an ‘outstanding implementation problem’ at the World Trade Organization.

Geographical Indication challenges in India

Inadvertently, India may have made it more difficult for its agricultural businesses to secure

G.I. protection. G.I.s that have been declared to be generic names or indications of products, as defined in Section 9, are not allowed to be registered because they have returned to the public domain or have ceased to be protected in their country of origin, or are no longer used there.

When considering whether a specific geographic name has become generic, it should be emphasised that TRIPS leaves this decision solely to the nation of origin. Accordingly, determining whether a specific G.I. has become generic or requires protection will be left to the governments and tribunals of WTO members. According to others, India should have limited the scope of genericide to the place of origin exclusively, rather than allowing its courts to assess what terms are generic and what terms are not based on the status in other countries where they are consumed. It’s more possible that the word is general because of the ferocity with which G.I. s. are being exploited by enterprises in the ‘New World.’

The global challenge of Geographical Indication

Intellectual Property Rights (IPRs) have recently come to the forefront of public discussion. Developed nations utilise international accords on intellectual property rights (IPR) as a tool to protect their own intellectual property interests and to accuse developing countries of infringing on their rights to intellectual property. Protecting geographic resources should be a high priority for developed countries, especially those that produce genetically engineered (GE) commodities. It is an attempt to fight the problem of trademark trolls utilising bogus names based on place of origin that is at the heart of the distinctive G.I. protection structure that Thailand has developed. In reaction to biopiracy affecting the country’s renowned Thai jasmine rice as well as the requirements of the global trade system, the Thai government decided to enact the Geographical Indication Act (G.I. Act). The problem of biopiracy was seen as the driving force for the passage of the G.I. law, and it was considered the motivating cause behind its passage.

Due to increased trade liberalisation in Thailand as a result of bilateral FTAs and RTAs with economies such as the United States of America, as well as Thailand’s attempt to protect its national “assets” by applying for a patent for the rice genes at the United States Patent and Trademark Office (USPTO), a situation has arisen that poses a threat to the country’s G.I. protection. This is due to the fact that patent protection in the United States only lasts for a very brief period of time (only up to 20 years). To set the record straight, Thailand never participated in global trade discussions on patent protection and advocated for the patenting of living forms.

Process of GI Registration in India

Any persons, producers, organisations, groups, or authorities that represent the concerned products’ producers file for GI registration. Form GI-1A to ID must be completed and signed by the applicant in triplicate, together with three copies of the Statement of Case and a fee of the required amount. The applicant must identify the interests of the manufacturers of the items to be registered. An expert panel will conduct a preliminary review of the application to identify any flaws or objections. If an objection is made, the applicant must respond to a public hearing within two months after the appeal is filed. The Geographical Indication Journal will publish the application within three months if it is accepted. When a product is published in a journal, anybody who objects to its use must file a notice opposing the application of the product within the stipulated time frame. Within two months after receiving notification from the opposing party, the applicant must respond with the requisite counter- statement to defend the same. Both parties (defender and opponent) will present evidence via affidavit and supporting documents during the hearing if the counterstatement has been submitted. The Registrar shall examine the application for GI acceptance from the date of filing if there is no counter-statement, and a certificate with the seal of the Geographical Indication Registry will be issued. It takes 10 years for a GI to be registered. If the applicant chooses to extend the current 10-year term, he or she can do so. In the case it isn’t, it is likely to be deleted from the GI registry.

Registration process flow-chart

The necessity for Geographical Indications

The legal protection of G.I. is of the highest significance due to the commercial viability of the brand. Competitors who do not have true control over the G.I. can freely ride free on its reputation because there is insufficient legal protection for them. This unethical business practises results in income losses for G.I. rights holders and more confusion for the intended audience, which is the client. These kinds of deeds can also have a negative impact on the goodwill and reputation that are linked with a geographical indication.

METHODOLOGY OF RESEARCH

This research paper analyses the registration status and many features of Geographical Indications in India. The information was gathered from secondary sources like WTO, WIPO, and the Geographical Indication Registry of India. I have reviewed several blogs and scholarly publications. Several pertinent newspaper articles, government-published legislation, national and international agreements, case laws, and authors’ works on Geographical Indication and its various challenges in India and worldwide have been studied.

In addition, simple mathematical methods are utilised to compute the percentage and the numerical data.

In order to write this research paper, I examined well-researched papers, government- published policies, national and international agreements, and the works of many authors to ensure that the facts and content offered are reliable and informative for the audience. I have spent hours measuring all the data and information provided in this research paper in order to compose a quality paper. In this regard, I hope to the end this research paper can help the readers.

RESULT AND DISCUSSION

Today’s worldwide economy relies on Intellectual Property Rights as a necessary instrument. The Indian government has given itself the goal of fostering innovation as one of its long- term development objectives. Our National IPR Policy envisions “an India where intellectual property fosters creativity and innovation for the benefit of all.” The Make in India, Start-up India, Digital India, and Skill India programmes have already shown to be effective in promoting innovation.¹⁹ The Atal Innovation Mission encourages young people in Indian schools and institutions to pursue new ideas. The Office of the Controller General of Patents, Designs, and Trademarks (OCGPT) has entrusted CIPAM with the goal of facilitating the production and marketing of intellectual property (IP) assets.²⁰

Intellectual Property Offices are being reformed in order to better serve the increased demand for intellectual property rights. The number of Patent Examiners has increased. Since October 2013, the Patent Office has served as an International Searching and Examining Authority. Increased IPO usage for job searching in other nations is heartening news. It is possible to use the expedited examination process for applicants who have registered as “Start-ups,” “ISA,” or “IPEA” in their overseas applications. A Quality Assurance Division was created by the Patent Office to make sure that all of our operations are carried out to the greatest possible standards.

Infringement of geographical Indication

A registered geographic indication can be placed on items by persons who are not the registered owners or authorised users of the registered geographic indication. People who aren’t from the region where the products were made are likely to be puzzled by this. Additionally, any use of the trademark that creates “unfair competition” is infringed upon by a geographic indication of the brand, as specified in Section 1 and Section 2 (b). Article 22(2)(b) of the TRIPS Agreement mandates members to “create legal mechanisms for interested parties to prevent any use that the Article 10 (b) of the Paris Convention.”²¹ This section aims to fulfil this mandate (1967). Anyone who sells products under a different geographical indication than that which the commodities’ genuine originator has legally registered to do so violates a geographical indication by falsely representing that the goods come from a certain area or place. Although the G.I. “is created in the area, region, or location in which the products are located in another territory,” Article 22 (4) of TRIPS requires the protection of a trademark’s geographic indication to be enforced.

GI in force in 2018 – Worldwide

At the international level, trademark laws, international agreements, and other national legal measures may all be used to safeguard Geographical Indications (GI). Several National Intellectual Property Offices provide information on GI protection on a national level on a regular basis. All of this information has been obtained by WIPO from numerous sources.

Source: WIPO statistics database, April 2020

There were 15566 GIs in force in Germany in 2018, followed by China with 7247, Hungary with 6683, the Czech Republic with 6285, Bulgaria with 6038, and Italy with 6015 in 2018. Until 2018, there are 2, 00,227 GIs in use around the globe.

Registration Status of GI in India

Since 2003, India has begun the registration procedure for gastrointestinal (GI) products. Three goods were registered at the start of the company. The Darjeeling Tea (both the name and the logo) was the first agricultural product to be registered, followed by Aranmula Kannadi, a Keralan handicraft, and Pochampalli Ikat, an Andhra Pradesh textile art. So far, 370 items have been registered under GI out of 706 applications; 53 products have been denied; 25 products have been withdrawn; 28 products have been abandoned; 230 products are still undergoing registration. Foreign countries in India also registered certain items. GI was applied for 15 goods from nine different nations. It was Pisco, a Peruvian brandy- produced product that was the first product to be registered by Peru in the year 2009-2010, followed by Champagne from France and Cognac from France. Napa Valley (2010-11), United Kingdom Scotch Whiskey (2010-11), Italy Prosciutto di Parma (2010-11), Parmigiano Reggiano, Prosecco, and Asiago (2016-17) and Grana Padano (2018-19) This year’s selections include Porto and Douro, Mexico Tequila, Thailand Lamphun Brocade Thai Silk, and Ireland Irish Whisky (2019-20).

State-wise registration status of GI

In India, the state of Karnataka has registered the most Geographical Indications (GIs), followed by Tamil Nadu (38), Maharashtra (30), Kerala (28), and Uttar Pradesh (27), according to a report from the World Intellectual Property Organization (WIPO).

Foreign country’s registration status in India

 The table above shows the status of GI registration in India by a foreign nation. As of this writing, Italy has 5 GIs, France and Portugal each have 2 (0.54 GIs), while the rest of the nations have recorded just 1 GI.

Product-wise distribution in India

According to the data, 214 GIs (57.84 %) were registered under the Handicrafts category, followed by 112 (30.27%) under the Agricultural category and 24 (6.49%) under the Manufactured category.

Year-wise distribution in India

GIs registered in India is shown in the above table according to their year of registration. More than half of all GIs were registered between 2008 and 2009, followed by 33 in 2016 and 2017, and only three between 2004 and 2005. The smallest number of GIs were registered in the years 2004 and 2005, and the largest number in the years 2006 and 2007.

CONCLUSION

Article 23 of the TRIPS Agreement protects wines and spirits, but not other products, therefore achieving Geographical Indication status internationally is still a work in progress.

It is critical for India to change Article 23 of the TRIPS Agreement so that GI protection may be extended to other products, such as Wines and Spirits, as well.

It’s prohibited for a G.I. tag holder to utilise the registered mark or name in similar or misleading goods. TRIPS Agreement has increased the need of protecting all goods’ geographic indications. WTO accords on industrial and agricultural commodities underscore how crucial it is to maintain geographical indicators for all products. Because GI protection is not provided by treaty provisions but by national laws, governments must recognise that national laws are best fitted to supply it. This protection helps exports sell more in overseas markets. The GI tag helps a product remain abstract and original. India’s IP enforcement isn’t far behind.

ABBREVIATION

GI – Geographical Indication

IPR – Intellectual Property Rights

WIPO – World Intellectual Property Organization

WTO – World Trade Organization

¹ Student at Amity Law School, Noida

² GOVINFO.GOV, https://www.govinfo.gov/content/pkg/CPRT-107JPRT77259/pdf/CPRT-107JPRT77259.pdf (last visited Jun. 18, 2022).

³ NJ.GOV, https://www.nj.gov/dobi/division_insurance/ucjf/index.htm (last visited Jun. 18, 2022).

⁴ Shubhangi Sharma, Geographic Indications: Know more about them, IPLEADERS (Jun. 18, 2022, 7:05 AM), https://blog.ipleaders.in/geographic-indication-law-in-india/

⁵ WORLD TRADE ORGANIZATION, https://www.wto.org/english/docs_e/legal_e/27-trips_04b_e.htm (last visited Jun. 18, 2022).

⁶ WORLD INTELLECTUAL PROPERTY ORGANIZATION, https://www.wipo.int/geo_indications/en/ (last visited Jun. 18, 2022).

⁷ LOTUS ARISE, https://lotusarise.com/geographical-indications-gi-tags-in-india-upsc/ (last visited Jun. 18, 2022).

⁸ UNCTAD.ORG, https://unctad.org/system/files/official-document/ictsd2003ipd4_en.pdf (last visited Jun. 20, 2022).

⁹ Mangala Hirwade & Anil W, Hirwade, Geographical indications: Indian scenario, RESEARCHGATE, (2006)

¹⁰ Mir, Farooq Ahmad & Ain, Fartual, Legal Protection of Geographical Indications in Jammu and Kashmir: A Study of Kashmiri Handicrafts, Journal of Intellectual Property Rights, Vol.15 (3), 220-227 (2010).

¹¹ Chikate, Anil Nanji & Gadge, Sharmila V., Geographical Indications: A Brief Appraisal of Indian Scenario,SRELS Journal of Information Management, Vol. 51 (6). 377-385 (2014).

¹² Manjunatha, N.K.,Status of Geographical Indications in India, Especially Karnataka,Third Concept 30, 32-39 (2016).

¹³ Gulati, Shruti., Geographical Indications in India & the Case of Famous Indian Weave: Banarasi Brocade, International Journal of Research – Granthaalayah, Vol. 4 (12), 137-146 (2016).

¹⁴ Yadav, Sujitkumar, et.el., Geographical Indication and Registration for it in Uttar Pradesh, India: Present and Future Potential, International Journal of Research in Agricultural Sciences, Vol. 5 (1), 48-57 (2018).

¹⁵ Shubhangi Sharma, Geographic Indications: Know more about them, IPLEADERS (Jun. 18, 2022, 7:05 AM), https://blog.ipleaders.in/geographic-indication-law-in-india/

¹⁶ Shubhangi Sharma, Geographic Indications: Know more about them, IPLEADERS (Jun. 18, 2022, 7:05 AM), https://blog.ipleaders.in/geographic-indication-law-in-india/

¹⁷    ADVOCATESPEDIA,       https://advocatespedia.com/Legal_Protection_Of_Geographical_Indications       (last visited Jun.22, 2022)

¹⁸    ADVOCATESPEDIA,       https://advocatespedia.com/Legal_Protection_Of_Geographical_Indications       (last visited Jun.22, 2022)

¹⁹ Parsa Venkateshwar Rao Jr, A tame exercise: Has govt run out of steam?, DECCAN CHRONICLE, (2018)

²⁰               INTELLECTUAL               PROPERTY               RIGHTS-LAWS      AND                                    PRACTICES, https://d2cyt36b7wnvt9.cloudfront.net/exams/wp-content/uploads/2020/03/23233906/Paper-9.3.pdf (last visited Jun.23, 2022)

²¹ Shubhangi Sharma, Geographic Indications: Know more about them, IPLEADERS (Jun. 18, 2022, 7:05 AM), https://blog.ipleaders.in/geographic-indication-law-in-india/