Geographical Indications in India: Law & Procedure

 Geographical Indications in India: Law & Procedure

By George Kutty

Legislation

The Indian law of geographical indications is enshrined in the the Geographical Indications of Goods (Registration and Protection) Act, 1999. This Act seeks to provide for the registration and protection of Geographical Indications relating to goods in India. The Act is administered by the Controller General of Patents, Designs and Trade Marks, who is the Registrar of Geographical Indications Registry. The rights granted under the Act, are operative in the whole of india.

What is a Geographical Indications

A geographical indication is a sign used on goods that have a specific geographical origin and possess essential qualities that are due to that place of origin. It is an Indication used to identify agricultural, natural or manufactured goods from a definite territory which have a special quality or characteristics or reputation based upon the climatic or production characteristics unique to the location. A geographical indication conveys consumer that a product is produced in a certain place and has certain characteristics that are due to that place of production. For example, no produces of whisky can call it Scotch, unless it has been produced in Scotland.

Examples of geographical indications from India include DARJEELING tea, BASMATI rice, KANCHIPURAM Silk Saree, ALPHONSO Mango and KOHHLAPARI slippers. Other examples of geographical indications include TUSCANY olive oil in Italy, ROQUEFORT cheese in France, and IDAHO potatoes in the United States.

A geographical indication is different from trademark. A geographical indication is used to identify goods having special characteristics originating from a definite territory whereas trademark identifies the source of the goods or services of one enterprise from those of others. Unlike Trade Marks which is proprietory in nature, with exclusive right on the owner to use the mark, a geographical indication is usually collectively owned by a Community, a group of producers or even by a Nation State.

Why does Geographical Indication need protection?

Geographical Indications denotes the origin and the quality of products which have acquired reputation and goodwill over time. False use of geographical indications by dishonest traders, for example "KANCHIPURAM" for sarees, which was not made in the Kanchipuram area of Tamil Nadu in India, is detrimental to purchasers and legitimate producers. Hence geographical indication needs protection.

Classification of Goods

Almost all jurisdictions including India follow International Classification system in which goods have been grouped into classes 1 to 34 for registration.

Rights conferred by registration

The registration of a geographical indication confers on the authorized users the exclusive right to use the geographical indication in relation to the goods in respect of which it is registered. The Registration offers better legal protection for an action for infringement.

Who Can Apply For A Geographical Indications

Any association of persons, producers, organization or authority established by or under the law can apply. The applicant must represent the interests of the producers of the concerned goods.

Who is an authorized user in relation to a Geographical Indication

A producer of goods can apply for registration as an authorized user, with respect to a registered Geographical Indication. He should apply in writing in the prescribed form along with prescribed fee.

Filing and Prosecuting Geographical Indications Applications

An application for registration of geographical indication shall be in presribed Form (Form GI-1 for the registration of a Geographical Indication in Part A of the Register by an Indian applicant; Form GI-2 for a convention application; an application for goods falling in different classes by an Indian applicant in Form GI-3 and an application for registration of goods falling in different classes from a convention country in Form GI-4)

The application should include the various requirements and criteria for processing a geographical application as follows:

· How the indication serves to designate the goods as a GI?

· The Class of goods;

· The territory;

· The particulars of appearance;

· Particulars of producers;

· An affidavit of how the applicant claim to represent the interest;

· The standard bench mark or other characteristics of the GI;

· The particulars of special characteristics;

· Textual description of the proposed boundary;

· The growth attributes in relation to the G.I. pertinent to the application;

· Certified copies of the map of the territory

· Special human skill involved, if any;

· Number of producers; and

· Particulars of inspection structures, if any, to regulate the use of GI.

Upon filing of the application accompanied by prescribed fees, a number will be alloted. The application would be examined on turn to check whether it meets the requirements of the GI Act and Rules. After issuance of the Examination Report submission would be considered. If no objections is raised it would be accepted and would be advertised in the Geographical Indications Journal. An opposition can be lodged within a maximum of four month period. If the opposition is dismissed, the application will proceed to registration in Part A of the Register.

After a geographical indication is registered any person claiming to be the producer of the registered geographical indication can file an application for registration as an authorised user in Part B of the Register.

Duration of a geographical indications

The term of a geographical indications registration is for a period of ten years. The renewal is possible for further period of 10 years each. If a registered geographical indication is not renewed, it is liable to be removed from the register.

Remedies For Infringement

The Act also provides criminal remedies. First, the intentional falsification of a geogrphical indications will bear a prison sentence of at least six months. This may be extended to three years and be accompanied by a fine. Second, the police may conduct search and seizure operations without any warrant. In essence, unauthorized parties may not use geographical indications if such use is likely to mislead the public as to the true origin of the product.