CASE STUDY OF GOA KAJU FENI AND OTHER POTENTIAL GOAN PRODUCTS[1]
INTRODUCTION
Intellectual Property and the associated legal IPRs are a vital element of entrepreneurship and an engine for the economic development and growth of nations. Intellectual property refers to creations of the mind: inventions, literary and artistic works, and symbols, names, and images used in commerce[2].The IP law relates to, and effectively recognises rights flowing from intellectual activity in industrial, scientific, commercial, literary and artistic fields.[3] The IPRs would encompass products of the intellect.[4]It is argued that the term IP is not a proper one for these properties as some of them are the accidental occurrences in the industry. This is true of rights like trade marks. But copyrights can be purely the intellectual products. In any case there is international consensus to the effect that these rights are to be called as the Intellectual Property Rights. The development of IPRs over the years has changed the outlook of nations towards the social and cultural growth.[5]
Presently the protection of Geographical Indication (GI) has emerged as one of the most contentious Intellectual Property Rights issues in the WTO’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). TRIPS defines GI as any indication that identifies a product as originating from a particular place, where a given quality, reputation or other characteristics of the product are essentially attributable to its geographical origin. Also a geographical indication (GI) gives exclusive right to a region (town, province or country) to use a name for a product with certain characteristics that corresponds to their specific location.[6]
The Geographical Indications of Goods (Registration and Protection) Act, 1999 protect the GIs in India. Registration of GI is not compulsory in India. If registered, it will afford better legal protection to facilitate an action for infringement.
GI and other IPRs:
Geographical indications are distinguishable from other forms of IPRs like patents, copyright,Traditional Knowledge ,Industrial Designs, Trade Secrets, Trade Marks, etc. But, more often than not GIs are confused with Trade Marks. Both are used in relation to goods and are the means of identifying the goods. But the following differences are noteworthy.
1) TMs are a private monopoly right whereas GIs are collective public rights.
2) TMs identify the source of the product but GIs identify not only the source but also the characteristic or quality associated with their locality.
3) Rights in TM may be assigned but rights in GI may not be assigned.
4) TM may contain inventive or distinctive word, but GIs contain tradition or culture as indication.
5) GIs cannot be used as TMs but a separate logo may be registered in addition to GI.
6) TMs and GIs may be used in conjunction in trade.
|
Eg. |
Teachers |
Scotch Whisky
|
|
|
TM. |
GI. |
|
|
Lindt |
Swiss Chocolate |
|
|
TM. |
GI. |
RATIONALE BEHIND THE LEGAL PROTECTION OF GI
Given its commercial potential, legal protection of GI assumes enormous significance. Without suitable legal protection, the competitors who do not have any legitimate rights on the GI might ride free on its reputation. Such unfair business practices result in loss of revenue for the genuine right-holders of the GI and also misleads consumers. Moreover, such practices may eventually hamper the goodwill and reputation associated with the GI such as specific manufacturing skills and traditions.
GI UNDER TRIPS
Shakespeare famously asked “What is in a name? That which we call a rose by any other name would smell as sweet”. The answer these days has a lot to do with where the name originates, because to owners of GI, names have everything to do with a product’s premium.[7]International efforts to establish a globally acceptable new economic order culminated in the establishment of WTO in 1995.The TRIPS Agreement under the WTO aims at the use of IP as a means to achieve balanced world trade order. At the international level, TRIPS sets out minimum standards of protection that WTO members are bound to comply with in their respective national legislations. However, as far as the scope of protection of GI under TRIPS is concerned, there is a problem of hierarchy. This is because, although TRIPS contains a single, identical definition for all GI, irrespective of product categories, it mandates a two-level system of protection: (i) the basic protection applicable to all GI in general[8], and (ii) additional protection applicable only to the GI denominating wines and spirits.[9] This kind of protection is challenging, if Article 22 fails to provide sufficient intellectual property protection for the benefit of the genuine right-holders of a GI. A producer not belonging to the geographical region indicated by a GI may use the indication as long as the product’s true origin is indicated on the label, thereby free-riding on its reputation and goodwill. There is no logical or legal reason, which could justify the discriminatory treatment between wines and other products.[10]
HISTORY OF THE TRIPS PROVISIONS ON GI
The Uruguay Round of the GATT negotiations began in 1986, precisely when India’s development policy making process was at a watershed. When India launched its massive economic reforms in 1991, marking a paradigm shift in its policy, the Uruguay Round negotiations were well under way, paving the path towardsMarrakesh in 1994 and the establishment of the WTO. Indiaremained a cautious and somewhat passive player during the initial years of the Uruguay Round negotiations, given its long legacy of inward looking development strategy and protectionist trade policy regime. TRIPS agreement clearly provides that the member countries must enact laws to prevent the use of GI identifying wines or spirits, when they donot originate in the place indicated by GI even when the true origin of the goods is indicated by using words such as type,style,etc,.[11] However, at Doha India wanted to extend protection under ‘geographical indication’ beyond wine and spirit, to other products. A number of countries wanted this higher level of protection to other products as they see a higher level of protection as a way to improve marketing their products by differentiating them more effectively from their competitors and they object to other countries “usurping” their terms. Some others opposed the move, and the debate has included the question of whether the Doha Declaration provides a mandate for negotiations. Those opposing extension argue that the existing (Article 22) level of protection is adequate. They caution that providing enhanced protection would be a burden and would disrupt existing legitimate marketing practices. India, along with a host of other likeminded countries pressed an ‘extension’ of the ambit of Article 23 to cover all categories of goods. However, countries such as the United States, Australia, New Zealand, Canada,Argentina, Chile, Guatemala and Uruguay have strongly opposed to any ‘extension’. The ‘extension’ issue formed an integral part of the Doha Work Programme. However, as a result of the wide divergence of views among WTO members, not much progress has been achieved in the negotiations and the same remains as an ‘outstanding implementation issue’.
INDIA'S LEGISLATION ON GI
India has adopted sui generis system of protection for GI with enactment of a law exclusively dealing with protection of GIs. The legislations which deal with protection of GIs in India are ‘The Geographical Indications of Goods (Registration &Protection) Act, 1999’ (GI Act), and the ‘Geographical Indications of Goods (Registration and Protection) Rules, 2002 (GI Rules). India enacted its GI legislations to comply with its obligations under TRIPS.
The GI Act, which came into force, along with the GI Rules, with effect from 15 September 2003, has been instrumental in the extension of GI status to many goods so far. The central government has established the Geographical Indications Registry with all-India jurisdiction, at Chennai, where right-holders can register their GI. Unlike TRIPS, the GI Act does not restrict its special protection to wines and spirits alone. The central government has discretion to decide which products should be accorded higher levels of protection. This approach has deliberately been taken by the drafters of the Indian Act with the aim of providing stringent protection as guaranteed under the TRIPS Agreement to GI of Indian origin. However, other WTO members are not obligated to ensure Article 23-type protection to all Indian GI, thereby leaving room for their misappropriation in the international arena.
The GI Act clarifies that any name which is not the name of a country, region or locality of that country, shall also be considered as a GI if it relates to a specific geographical area and is used upon the concerned goods.[12] This provision enables the providing protection to symbols other than geographical names, such as ‘Basmati’.
The GI is defined as an indication which identifies goods as agricultural goods, natural goods, or manufactured goods as originating ,or manufactured in the territory of a country, 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 case where such goods are manufactured goods ,one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality as the case may be.[13]
Thus the following ingredients can be found in this definition.
*It is an indication
*It is in relation to goods.
*The goods may be agricultural, natural, or manufactured goods.
*These goods are originating or manufactured in a locality.
*A given quality, reputation or other characteristic is attributable to that geographical region.
Attributablity must be ascertained by verifying reasonable nexus between characteristic, reputation, or quality and the locality.
Registration
While registration of GI is not mandatory in India, Section 20 (1) of the GI Act states that no person “shall” be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an “unregistered” GI. The registration of a GI gives its registered owner and its authorized users the right to obtain relief for infringement. The GI Registry with all India jurisdictions is located in Chennai with the Controller-General of Patents, Designs and Trade Marks is the Registrar of GIs, as per Section 3(1) of the GI Act. Section 6(1) further stipulates maintenance of a GI Register62 which is to be divided into two parts: Part A and Part B. The particulars relating to the registration of the GIs are incorporated in Part A, while the particulars relating to the registration of the authorized users are contained in Part B.[14]
A GI may be registered in respect of any or all of the goods, comprised in such class of goods as may be classified by the Registrar.
The Registrar is required to classify the goods, as far as possible, in accordance with the International classification of goods for the purposes of registration of GI.[15] A single application may be made for registration of a GI for different classes of goods and fee payable is to be in respect of each such class of goods.
In India a GI may initially be registered for a period of ten years, and it can be renewed from time to time for further periods of 10 years. Indian law place certain restrictions in that a registered GI is not a subject matter of assignment, transmission, licensing, pledge, mortgage or any such other agreement.
The GI Act in India specifies that nothing in this Act “shall” be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. In its simplest form, the principle of passing-off states that no one is entitled to pass-off his goods as those of another. The principal purpose of an action against passing off is therefore, to protect the name, reputation and goodwill of traders or producers against any unfair attempt to free ride on them.
Though, India, like many other common law countries, does not have a statute specifically dealing with unfair competition, most of such acts of unfair competition can be prevented by way of action against passing-off. Article 24.3 of TRIPS clearly states that in implementing the TRIPS provisions on GIs, a Member is not required to diminish the protection of GIs that existed in that Member immediately prior to the date of entry. This flexibility has been utilised by India in the GI Act 11 in maintaining the right of action against passing-off, which has been a part of the common law tradition of India, even prior to the advent of the TRIPS Agreement.
Any lawsuit relating to infringement of a registered GI or for passing of an unregistered GI has to be instituted in a district court having jurisdiction to try the suit. No suit shall be instituted in any court inferior to a district court.
STATUS OF GI REGISTRATIONS IN INDIA
Around 106 GIs of Indian origin have already been registered with the GI Registry.[16] These include GI like Darjeeling (tea),Pochampalli, Ikat (textiles), Chanderi (sarees), Kancheepuram silk (textiles), Kashmir Pashmina (shawls), Kondapalli (toys), and Mysore(agarbattis). GI’s registered during 2007-08 include ‘Muga Silk’ from Assam, ‘Madhubani paintings’ from Bihar, ‘Malabar pepper’ and ‘Alleppey Green Cardamom’ from Kerala, ‘Cora Cotton’ from Tamil Nadu, ‘Allahabad Surkha’ from Uttar Pradesh, ‘Nakshi Kantha’ from West Bengal, ‘Monsooned Malabar Coffees’ from Karnataka and Kerala. Many applications pertaining to registration under the GI Act are pending.
TABLE OF TOTAL GIs REGISTERED AS ON 15TH AUGUST 2009[17]
|
ROW |
PRODUCT CATEGORY |
NO OF REGISTERED GIs |
|
1 |
HANDICRAFTS |
73 |
|
2 |
AGRICULTURAL PRODUCTS |
24 |
|
3 |
MANUFACTURED
PRODUCTS |
6 |
|
4 |
HORTICULTURAL PRODUCTS |
2 |
|
5 |
FOOGSTUFF |
1 |
|
6 |
TOTAL GIs REGD |
106 |
CASE STUDY OF GOA FENI
The GOA Cashew FENI Distillers and Bottlers Association (TGCFDBA) and The Department of Science, Technology & Environment of the GOA government jointly endeavoured and succeeded in obtaining GI tag for FENI, which is registered under class 33. It deals with alcoholic beverages except beers. It is in response application dated 19th December , 2007 .Registration isunder the name "FENI".[18] The product is a colourless,and clear liquid when matured in wooden barrels turns into golden brown tint .This GI registration will protect the rights of farmers and local producers; bottler of this unique product. The population which is likely to be benefited with this registration is estimated at 40,000. There are an estimated 4,000 traditional mini-distilleries or stills inGOA that make cashew FENI and about 2,200 making coconut FENI. It is also expected that GI registration will enhance its market potential .GOA produces eight lakh litres of cashew FENI annually and it is exported to US, Australia and the Middle East. The price of FENI varies from 60 to 800 rupees. The production of the cottage industry in GOA begins when the cashew fruit is harvested in February or March and the process of making FENI is completed by the end of May.
The traditional method of distilling cashew fenny
1. The cashew juice is put in a big pot (called a Bhann.) Which is connected to a smaller pot (called Launni) by means of a conduit. The Launni serves as a receiver or collector
2. Juice in big pot is boiled with the help of firewood and process of vaporisation and distillation take place result in the concentrated liquid which collects in the smaller pot, the pressure in the receiver is kept in check by pouring cold water on it, typically with a wooden ladle.
3. The first stage of processing (vaporisation) is done on big fire but the later stage of distillation has to be done on slow fire to keep the pressure and heat under control.
4. The process of distilling fenny with such apparatus takes about 8 hours and is locally called Bhatti
Goa Feni: present position.
Before the grant of GI status to feni only Dwijen Rangrekar’s report categorically asserted that more than the GI issue feni is fighting a battle for survival on economic and other grounds. It is facing sharp competition from other factory-crafted liquors, problems adulteration and the poor pricing.
The biggest problem for feni is that it is categorized as country liquor and cannot be exported to other states.
Dwijen Rangrekar's report has categorically submitted that more than the GI issue feni is fighting a battle for survival on economic and other grounds. It is facing sharp competition fro m other factory crafted liquiors, problems of adulteration and the poor pricing.The biggest problem for feni is that it is categorised as country liquor and it cannot exported to other states.
To overcome these problems the producers and general public need to participate in the process of protecting the local products and local traditional knowledge The GI registry and its informations must be made available in regional language so that the people will come forward to register more and more products under the GI Act.
GI protection for potential goan products:
Following is the list of different products that have the geographical origin in the stat of Goa. These products can sub serve the economic growth and cultural prosperity of this part of the country if they are protected under the GI Act or under the law relating to traditional knowledge.
• More than 100 varieties of Goan mangoes.
• Special local chillies.
• Bread fruit
• Cucumber
• Areca nut
• Papads
• Pickles
• Goan furniture.
• Canacona's snake sticks.
• Vinegar
• Betal leaves
• 3000 year old unique geographically indicated rice varieties such as damgo, babri, dodig, cochri, belo, patni, kendal, xitto, nermar, asgo, sotti, etc.
• Saligao village in Barder is known for aromic and tasty rice. This variety is disappearing now because of competition from hybrid varieties.
• The art of producing typical sausages or salted mangoes is not found anywhere in the world.
• Goan fish curry is unique.
Some losses for Goa:
• Goa could not get GI protection for Rasabale. But Karnataka Got GI protection for its Nanjanagoodu Rasabale.
• Goa has not obtained GI protection for its unique betel leaves. But Karnataka got the same.
• The state of UP has got GI protection for its Allahabad Guavas. But it is ironical that Guava Fruit Tree was first introduced in India by Portuguese from Brazil.
Though Goa is wealthy and literate state, it needs to learn a lot from other states in respect of protection of GI and TK. The NGOs must contribute in terms of documentation of local knowledge and the process and preparation of locally unique products. Village Panchayats need to join the mission to identity plant based products with GI registration potential.
________________________________________
[1] Paper by Prof.M.K.Matolli.Government Law College ,Hassan at the
[2] WORLD INTELLECTUAL PROPERTY ORGANIZATION.
[3] Law of Intellectual Property by V.J.Taraporevala.p.3
[4] Latha.R.Nair and Rajendra Kumar,” Geographical Indication ,a search for identity.p.2
[5] Rolle of Intellectual Property in Economic Growth-by Kausik. Laik appeared in Journal of IPRs Vol.No.2005.pp 465-473.
[6]. Article 22 of TRIPS
[7].Quoted by Lata.R. Nair, in Managing Intellectual Property, July/August 2002 Issue.
[8] Article 22 of TRIPS
[9] Article 23 of TRIPS
[10] .Kasturi.Das.”Socio-economic Implications of Protecting Geographical Indications in India”,available at the releases of CENTRE FOR WTO STUDIES.
[11] .Article 23(1) of TRIPS.
[12]. Section 1(3) (e) of the GI Act. 1999.
[13].Section 2(!)(e) of the GI Act 1999.
[14] Section 7 of the GI Act.
[15] Section 8 of the GI Act.
[16] As on 15th August 2009.
[17] .Source. GI Registry Chennai.
[18] GI No.1105 & Application No.120.
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