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- By Shraddha Sharma & Alo Dutt B.A.,LLB. IIIrd yr FJS, MITS Lakshamangarh, Sikar
Introduction and Definition - An Overview :
Intellectual property rights (IPRs) are about optimising and realising the commercial and economic value from the IP chain: problem, knowledge, and imagination, innovation intellectual property the solution. They usually give the creator an exclusive right over the use of his/her creations for a certain period of time. Geographical indications, amongst others, has been an area of intellectual property rights and that have been developing in recent years, in developing countries like India it has a broad spectrum with regard to its study, analysis and application. There is no universally accepted definition of a GI, but this description, derived from international agreements1, best captures the universal spirit of the concept: A Geographical Indication identifies a good as originating in a delimited territory or region where a noted quality, reputation or other characteristic of the good is essentially attributable to its geographical origin and/or the human or natural factors there. In most cases, GIs have been formally used and accepted as such in trade and in legal records. They may be registered or protected in different forms; these can include formal sui generis systems, trademarks, certification marks, collective membership marks, and denominations of origin2. Sometimes, they are not formally protected and may be recognized due to accepted common use. In many cases, certain GIs are protected in one country but not in another or the forms and scope of protection are often different from country to country. For example Feta and Champagne are protected in the European Union but not in the United States where the words can be used generically.
. TRIPS and Lisbon Agreements . Protection is sometimes also available via administrative rulings or even under generic laws on unfair competition, truth in labeling, or consumer protection
192. 1958 and. The TRIPS Agreement. the GI is a device that signals a set of unique qualities or attributes to consumers. cultural aspects or the quality of a product and the place of origin or geographic area. is given by the State to regional producers and processors of particular products for their use only in relation to those products. at London on June 2. 1891. 6th edition 2007. 1911. whereas “appellation of origin” (or GI) means the geographical name. “…which serves to designate a product originating therein. beers like : pilsen and budweis from Czech republic. G.A GI is a unique and important form of collective intellectual and cultural property. with various rights. wines like: champagne. not associated with such names. 1934 and at Libson on Oct. protects appellations of 3 4 . Hence. where a given quality.6. that it has come into common use. 5 . but it is really since the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) entered into force in the mid-1990s. According to the World Intellectual Property Organization (WIPO) an “indication of source” simply means any expression or sign used to indicate that a product or service originates in a country. . p. paragraph 1 contains the following description: “Geographical indications are. . which typically defines a specific geographic (or sometimes cultural) area. of misusing such geographical names and wrongly applying to even those goods or products. B. at the Haugue on Nov. This phenomenon of misusing geographical indications or resorting to false or deceptive indication of source of goods has become quite common in the recent years3. Article 22. for the purposes of this Agreement. The Lisbon Agreement of 1958 as revised at Stockholm in 1967 and amended in 1979. the characteristic qualities of which are due exclusively or essentially to the geographical environment …”4. porto. Reddy. The right to the exclusive use of a name. Canadian rye wisky and Canadian whisky from Canada. There is every possibility in the modern day. It is expected that there is a direct link between the distinguishing characteristics. 1967. 31. a region or a specific place. indications which identify a good as originating in the territory of a Member. reputation or other characteristic of the good is essentially attributable to its geographic origin. Intellectual Property Rights and the Law. particularly with regard to the goods uniquely associated with such names. The term “Geographical Indication” has been around for many decades. 115–116. the Additional Act of Stockholm of July 14. 14. Evolution: An agreement of Madrid for the prevention of false or misleading indications of source on Goods and the Additional Act of Stockholm5 1891 is intended to protect consumers against persons using false indications of source on goods. sherry. or a region or locality in that territory. chianti and samaos from Europe.” Certain geographical names have acquired a lot of importance in the commercial market. For example paris perfumes from paris. revised at Washington on June 2. Dated Apr. WIPO 1998.
See Gordon et al. in recent years. Josling 2006b. A type of fine porcelain Manufactured at Limoges. A stongly flavoured cheese. Prior to this. The salient features of this legislation include definition of several important terms like “geographical indication”. It is important that all the WTO member countries work towards development of a comprehensive mechanism for a more effective protection of geographical indications. For rural areas. etc. GIs can provide part of the physical and conceptual structure for affirming and valuing the unique socio-cultural and agro-ecological characteristics of a particular place Geographical indication have benefited certain regions from significant economic development by increasing the returns gained from utilizing their natural resources and establishing a solid form of competitive advantage. GIs can be the organizing principle or center piece of regional and local development initiatives. This Act seeks to provide for the registration and better protection of geographical indications relating to goods in India. In this regard the recommendation of Doha Declarations for establishment of a multilateral system of notification and registration of geographical indications is an important initiative. The Controller General of Patents. For example. Objectives: GIs can reduce the asymmetry of information between producer and consumer and thereby provide a public benefit by improving market transparency and reducing information costs8. and has expanded the number of products that have a recognized 6 7 . 1999 for a more thorough discussion of commodities versus differentiated products. 1999. The growing acceptance of GIs as an instrument has widened the concept and apart from agricultural products more and more industrial goods are also being included. the Indian Parliament passed the Geographical Indications of Goods (Registration and Protection) Act. In December 1999. GIs convey unique characteristics that allow them to distinguish their products and break out of the commodity trap of numerous similar and undifferentiated products trading primarily on price9. “registered proprietor”.origin that is. 9 . or locality. “authorized user”. Examples of Appellations of Origins could be Limoges6 and Roquefort7. “producers”. name of a country. Designs and Trade Marks who is the Registrar of Geographical Indications would administer the Act. there was no rule in India to specifically deal with GIs. The term of protection is initially for ten years and then can be renewed from time to time. and Sylvander and Allaire 2007 offer a more thorough discussion of the public policy motivations. . 8 . “packages”. . “goods”. region. the European Union has made exploitation of the marketing potential of GIs an important element of its agriculture and rural development strategy.
Kerr 2006. or close to 10% of the national food market’s total value12. states: “So public authorities may need to do more than provide legal remedies for deception: they may need to establish a registry. However. ranging from Scotland to Australia and China to Chile have GI exports in excess of US$ 1 billion. One noted scholar. Wines and spirits are the most developed and account for about 85% of protected GIs there. a GI helps to confer uniqueness or differentiation. only a modest number of these have significant economic value and their identification as potential GIs does not necessarily imply that they would enjoy market success. In either case “protection” of the 10 .GI status. Sylvander and Allaire 2007. Europe and the more affluent countries. European Commission 2003. define quality standards and take steps to protect the reputation inherent in the GI from devaluation. Josling 2006b. The EU leads other regions in this area of intellectual property protection. Today about 6. a GI takes on value just like any familiar brand. Antigua coffee.000 GIs are recognized in the EU alone10 and the European Commission claims that the strategy has met with considerable success11. Why Geographical Indications need protection: As it becomes more popular. especially in the United States. Unfortunately. many lesser know origins are not formally demarcated or legally recognized and protected. Basmati rice. Rooibos tea. The majority of that is for wines and spirits. They include Mexican Tequila. Tellicherry pepper. Darjeeling tea. The market for GI products is significant. The estimated value for sales of GI products worldwide is well over US$ 50 billion. there are very few comprehensive estimates for the distinct origins but data for France suggest that the market value for their GI products is almost €19 billion. Economic value of Geographical Indications: The best-known products with a strong link to developing origins represent only the tip of a considerable number of potentially marketable GI products. particularly in more developed markets. Pampas beef. 13 . . For producers. Café de Colombia. Besides the value of legal protection. GI status can ostensibly reduce the information problems faced by consumers when product characteristics are not readily evident13. 11 . and can be used to grant a measure of protection to what has essentially evolved to represent a brand name for their product. Stanford University’s Tim Josling. and many more with formal protection. Currently. A number of countries. 12 .
Another possibility is to have a register of geographical indications. that is the system used by France and Portugal. would be a very good example of an unfair trade practice. In order to avoid such situation. Geographical indications can also be protected by the registration of collective marks or certification marks.14” Unlike trademarks and patents. for instance. on the other hand. there's a wide variety of types of protection available for geographical indications. In a long litigation of almost five years. the use of the certification mark for Stilton cheese is restricted to certain farmers who comply with the rules that have to be observed for the use to be allowed. the injured party goes to court and puts his case. USA on September 2nd. So. After a patent on Basmati rice lines and grains granted by the USPTO to M/s. Josling 2006b. there are a variety of different ways in which geographical indications can be protected depending on the national law and there are different ways in which this protection can be extended internationally.7 . Spain. Unlike individual trademarks. Rice Tec Inc.GI is essentially a public policy. If protection is sought under tort law. traditional knowledge. Agricultural and Processed Foods Export Development Authority (APEDA) are pursuing the remaining cases15. India contested this patent. ultimately the title of the patent was changed in the year 2002. 15 . They can be protected either through "sui generis" legislation or decrees. collective marks belong to a group of traders or producers. patents on basmati rice from India and jasmine rice from Thailand. and benefit sharing. for instance. For example. p. 4. doesn't belong to anyone: it is registered on the understanding that anyone who meets the specified conditions is allowed to use it. Some of the recent patents at US have triggered an intensive debate on linkages between IPR regime. there are no formalities to be observed such as registration or decree. policy briefs No. A certification mark. 2003 . Another possibility again is to rely on the law against unfair competition or the tort of "passing off. Chile. Cancun Agenda: Geographical Indications and Developing Countries. The developing countries have submitted two major proposals at WTO on IPR issues where geographical indications have also been covered. 1997. France." which basically says that unfair trade practices should not be used. 14 . To use a geographical indication for a product that does not originate in the region named. India has now set up a Basmati Development Fund. Australia. UAE. They were largely in UK. but the responsibility for quality maintenance can be assumed by the public authorities or left to the private sector. The watch agency has identified a number of attempted registrations of which 15 have been successfully challenged and concluded in India’s favour. etc. Some of the patents are even based on GIs from developing countries. a watch agency to keep a worldwide watch for new trademark applications for Basmati Rice or its deceptive variations.
the TRIPS Agreement. Ironically. its geographical scope is limited to the 20 States that are party to it. An IPR.International protection systems: Well in fact there are several. Chennai. This Agreement requires that all Members of the World Trade Organization protect geographical indications. It is not justified to call it Geographical indication. What hurts devotees is the way Prasadam is reduced to commercial product. which is an integral part of the WTO system. sacred Tirupathi Laddu now joins the company of goods like Darjeeling Tea. which is then communicated to the other States party to the Agreement. administered by WIPO. including a very general one provided for in the Paris Convention. known as the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration. It is criticized as its latest manifestation of brazen commercialization of divine abode. There is now another international agreement. Strictly speaking not even the temple on Tirumala. which says that geographical indications must be protected against any unauthorized use that is misleading. which is meant for a wider geographical area. . or are used in good faith. A country that operates a national system for the protection of appellations of origin can apply for international registration of a given appellation of origin. because nowhere in Tirupathi town these laddus are made except in temple. recently. from Indian Patent Office. if their unauthorized use would be misleading or would constitute an act of unfair competition. Latest controversial Geographical Indication in India: The Tirumala Tirupathi Devasthanams (TTD) trustees of world’ richest temple on Tirumala Hills secured Geographical Indication (GI) Registration for sacred Laddu Prasadam. cannot be confined to a very small portion of a temple. This arrangement works very well. but owing to the limited number of States that have national systems for appellations of origin. and Champagne wine etc. However. The TRIPS Agreement provides for a somewhat higher degree of protection for geographical indications in the case of wines and spirits. For appellations of origin there is a special Agreement. but just the kitchen in the temple. raising many eyebrows. Which geography this laddu is indicating? It is not Tirupathi. Goa Feni. This international Agreement provides an international registration system for appellations of origin. this broader protection is subject to certain exceptions for geographical indications that have been in use for a long time. as the geographical indications for such products have to be protected even in the absence of confusion or unfair competition.
weavers and other traditional artists are the indications of these sad ground realities. . The suicides by artisans. Darjeeling Tea would be more acceptable in the market if it bears the distinctive certification mark along with the seal of approval from the concerned Tea Board.Conclusion: The geographical indications have emerged as one of the important feature of IPR regime across the countries. These rights are required to be remained in specified territory so that the artisans in that area enjoy the exclusive commercial benefits. dwindling market. apart from getting their GIs protected. The poor conditions of family. However. The developing countries in general would have to take into account these factors while exporting GI protected agricultural and other commodities. which do not allow the artisans to take benefit from GI rights. to which the fruits of GI registration have never reached. A separate and distinguishable packaging would also add a distinct marketability to the product. and disinterest of newer generations in continuing their ancestral business securing the quality of goods are some of the problems. Series of proposals to widen the list of geographical indications is a clear evidence of this. It is interesting to note that the awareness among the developing countries has also increased manifold. onslaught of competing goods. they would also have to take care of maintaining and insuring quality of their GI protected products. low wages. For instance.
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