Geographical Indication

RATIONALE OF PROTECTING GEOGRAPHICAL INDICATION

Geographical indications have features that respond to the needs of indigenous and local
communities and farmers. Geographical indications - (a) are based on collective traditions and a
collective decision-making process; (b) reward traditions while allowing for continued evolution;
(c) emphasize the relationship between human efforts, culture, land resources and environment;
and (d) are not freely transferable from one owner to another. Geographical indications
therefore, reflect inter alia, the traditions, culture, human efforts, resources, and environment of
particular regions.

FUNCTIONS OF GEOGRAPHICAL INDICATION

Geographical indications are valuable property to producers from particular geographical

regions. They basically perform three functions. Firstly, they identify goods as originating in a
particular territory, or a region or locality in that territory; secondly, they suggest to the
consumers that the goods come from an area of a given quality. reputation or other
characteristic of the goods is essentially attributable to their geographic origin; and thirdly, they
promote the goods of producers of a particular area.

DISTINCTION BETWEEN TRADE MARK AND GEOGRAPHICAL INDICATION

Although the geographical indications are as valuable as trademarks, yet the functions of
geographical indications are different from that of the trademarks. Trademarks are owned by
enterprises and used to identify products and services in the market, in particular to distinguish
them from competing products and services whereas an indication never belongs to a particular
enterprise. A geographical indication can be used by several enterprises at the same time,
provided that the products for which it is used originate in the geographical area to which the
indication refers:
Indian Legislative Framework
India, being a member of the WTO, enacted the Geographical Indications of Goods
(Registration & Protection) Act, 1999, which came into force on 15 September 2003.The
Act confers legal protection to GIs relating to goods and thus prevents unauthorized
use of registered GIs. Section 2 (e) of the Act defines geographical indication as:
‘Geographical indication’, in relation to goods, means an indication which identifies such
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.
For registration, a GI must strictly fall within the scope of Section 2(1)(e). In addition to
these requirements, there are a number of statutory prohibitions, which prohibit
registration of certain GIs.Only those GIs which satisfy the statutory requirements and
which are not covered by the statutory prohibition are entitled for registration.
Some better-known examples of GI are "Champagne," "Bordeaux," and "Chianti," the
first two being regions in France and the third, a region in Italy, all famous for their
wines.
• In the Indian context, 'Darjeeling Tea' was the first GI registered under the GI Act.
• This Gl is registered in the name of the Tea Board of India which also hold GI
registrations for 'Nilgiri Tea' and 'Assam Tea'.
• Similarly, the Coffee Board (under the Ministry of Commerce & Industry) has a
subsisting registration for Malabar Coffee.
• Other well-known GIs include 'Kashmiri Pashmina', 'Mysore Silk',
History
Why G.I. Act, 1999 got introduced in India?
Under the TRIPS (Trade-Related Aspects of Intellectual Property), countries do not
have a mandatory obligation to protect a geographical indication if that geographical
indication is not covered within the country of its origin.Moreover, India did not have any
laws before 1999 related to geographical indication which could protect the interest of
the producers of G.I. goods.
what made India introduce the Geographical Indications of Goods
(Registration and Protection) Act, 1999?
It was due to three controversial cases related to Neem, Turmeric, and Basmati.
Azadirachta Indica is the botanical name of the neem tree and the tree is referenced in
Indian old texts for more than 2000 years ago and has been connected for centuries in
agriculture as an insect and pest repellent, veterinary medicine, cosmetics and toiletries.
Neem extracts can be used against hundreds of pests and fungal diseases that attack
food crops; the oil extracted from its seeds can be used to cure cold and flu also mixed
in soap, it provides relief from skin.1994, European Patent Office (EPO) granted a
patent to the US Corporation W.R. Grace Company and US Department of Agriculture
for a method for controlling fungi on plants by the aid of hydrophobic extracted Neem
oil. In 1995, a group of international NGOs and representatives of Indian farmers filed
legal opposition against the patent. They submitted evidence that the fungicidal effect of
extracts of Neem seeds had been known and used for centuries in Indian agriculture to
protect crops, and therefore, were unpatentable. In 1999, the EPO determined that
according to the evidence all features of the present claim were disclosed to the public
prior to the patent application and the patent was not considered to involve an inventive
step. In May 2000 EPO revoked the patent which was granted.

BASMATI CONTROVERSY
On 2 September, 1997, the United States Patent and Trademark Office granted patent
no. 5663484 to Ricetec Inc., a U.S. multinational company based in Alvin, Texas for new
"lines and grains' ' in the name of "Basmati" rice. Ricetec claimed that the new varieties
have better characteristics than the original Basmati rice and can be successfully grown
in specified geographical areas in North America. Further, it had been using the
trademarks ``Texmati', 'Kasmati' and 'Jasmati' for several years to sell its version of
Basmati rice. The controversy therefore, was twofold: firstly, according to India, the
grant of patent was invalid; and secondly, marketing of rice by Ricetec Inc. in the name
of 'Basmati' which according to India was a geographical indication in India, should not
be allowed.
As is known the world over, the long-grain aromatic rice variety known as Basmati is a
traditional produce vastly grown in sub-Himalayan areas. It has been grown in India and
Pakistan for hundreds of years and farmers have developed various varieties by
employing traditional methods and practices. One of the arguments of India was that
Bamati is a geographical indication and since it is being grown in India and Pakistan for
lees, no other country can allow its persons to use this indication. It is noteworthy after
the establishment of the World Trade Organization (WTO), there is a substantial cut on
the Indian Basmati rice in Europe, which has the world's highest demand for Price.
Consequently, the competitiveness of Indian Basmati has increased greatly.
After a hard work of two and a half years, India put together the data and challenged the
patents of Ricetec Inc. in April 2000. The U.S. Patent and Trademark Office (USPTO)
issued patents to only three strains of hybrid Basmati grain out of 20 claims, developed
by Ricetec while rejecting a more sweeping claim by the company. The three strains of
Basmati to which protection was afforded, were patently and noticeably different.

As far as the use of geographical indication 'Basmati' by Ricetec Inc. was concerned.
The Patent Office mandarins stated that Ricetec could use the Basmati appellation
because it was not a trademarked name or a geographic indicator, unlike Champagne
or GRAPHICAL INDICATION Port, which were specific to a region. It was further stated
that Basmati was not a geographic indicator even in India. It was grown all over India,
Pakistan and even in Thailand. It was also stated that the Basmati saga had a turbulent
history ever since the Indications A perceived transgression in the mid-1990s was first
reported when Texmati and Jasmati hit the shelves of grocery chain stores. After the
protest made by India and Pakistan against the use of the name "Basmati", the USPTO
disallowed the patent-holder from using the name "Basmati"
In 1999, India enacted the Geographical Indications of Goods (Registration and
Protection) Act which is the first specific law which provides for the registration and
protection of the geographical indications. The Act came into force on 15 September
2003. The Basmati has been registered as a geographical indication under the Act for
the entire States of Punjab, Haryana, Delhi, Himachal Pradesh, Uttarakhand, and parts
of western Uttar Pradesh and Jammu & Kashmir.
Chapter III: Procedure for and Duration of Registration
Section 3:- Registrar of Geographical Indications.-

1. The Controller-General of Patents, Designs and Trade Marks appointed under

sub-section (1) of section 3 of the Trade Marks Act, 1999, shall be the Registrar of
Geographical Indications.

2. The Central Government may appoint such officers with such designations as it
thinks fit for the purpose of discharging, under the superintendence and direction of the
Registrar, such functions of the Registrar under this Act, as he may from time to Time
authorize them to discharge

Section 5. Geographical indications Registry and officer thereof.-

Section 5 provides for the establishment of a Geographical Indications Registry, which
has been established in Chennai, and branch offices. The territorial limits of such offices
may be defined by the Central Government. There shall be a seal of the Geographical
Indications Registry.
Section 8 REGISTRATION TO BE IN RESPECT OF PARTICULAR GOODS AND
AREA
According to section 8, a geographical indication may be registered in respect of any of
the goods, composed in a prescribed class of goods and in respect of a definite territory
of a country or a region or locality, as the case may be. The classification shall as far as
possible, conform to the international classification of goods. Where any question arises
regarding classification of goods or the determination of the definite areait shall be
determined by the Registrar whose decision in the matter shall be final.
Section 9. Prohibition of registration of certain geographical indications.-
A geographical indication-
a. the use of which would be likely to deceive or cause confusion; or
b. the use of which would be contrary to any law for the time being in force; or
c. which comprises or contains scandalous or obscene matter; or
d. which comprises or contains any matter likely to hurt the religious susceptibilities of
any class or section of the citizens of India; or
e. which would otherwise be disentitled to protection in a court; or

f. which are determined to be generic names or indications of goods and are,

therefore, not or ceased to be protected in their country of origin, or which have fallen
into disuse in that country; or
g. which, although literally true as to the territory, region or locality in which the goods
originate, but falsely represent to the persons that the goods originate in another
territory, region or locality, as the case may be, shall not be registered as a geographical
indication.

Explanation 1.- For the purposes of this section, "generic names or indications'', in
relation to goods, means the name of a goods which, although relates to the place or
the region where the goods was originally produced or manufactured, has lost its
original meaning and has become the common name of such goods and serves as a
designation for or indication of the kind, nature, type or other property or characteristic
of the goods.
Explanation 2.- In determining whether the name has become generic, account shall be
taken of all factors including the existing situation in the region or place in which the
name originates and the area of consumption of the goods.

11. Application for registration.-

1. Any association of persons or producers or any organization or authority established
by or under any law for the time being in force representing the interest of the producers
of the concerned goods, who are desirous of registering a geographical indication in
relation to such goods shall apply in writing to the Registrar in such form and in such
manner and accompanied by such fees as may be prescribed for the registration of the
geographical indication.
The Applicant has to be a legal entity and should be representing the interest of
producers of the good applied for. Any such organization or association being not that of
the producers, may have to prove that they represent the interest of producers. Any
applicant authority also has to prove that they represent the interest of the producers.

It is noteworthy that many communities which are holders of traditional knowledge in

goods produced and sold using geographical indications, have not formed associations.
In many cases, it is the distributors of these goods who have formed associations, and
they may be in a position to obtain registration for the geographical indications. Thus, as
per the law, these associations will have to prove that they represent the interest of
producers.
Every application for the registration of a geographical indication shall be made in the
prescribed form and shall be signed by the applicant or his agent and must be made in
triplicate along with three copies of a Statement of Case.
2. The application under sub-section (1) shall contain-

a. a statement as to how the geographical indication serves to designate the goods as

originating from the concerned territory of the country or region or locality in the country,
as the case may be, in respect of specific quality, reputation or other characteristics of
which are due exclusively or essentially to the geographical environment, with its
inherent natural and human factors, and the production, processing or preparation of
which takes place in such territory, region or locality, as the case ay be;

b. the class of goods to which the geographical indication shall apply;

c. the geographical map of the territory of the country or region or locality in the
country in which the goods originate or are being manufactured;

d. the particulars regarding the appearance of the geographical indication as to

whether it is comprised of the words or figurative elements or both;

e. a statement containing such particulars of the producers of the concerned goods, if

any, proposed to be initially registered with the registration of the geographical
indication as may be prescribed; and (f) such other particulars as may be prescribed.

A document entitled. 'Statement of case' is to be annexed with the application form

which shall contain.
a. Specification .A brief statement describing the special characteristics and which
shall contain: quality parameters of the goods in about 50 to 100 words.
b. (b) Description of goods giving its uniqueness and geographical linkage. A
detailed description of the geographical indication shall clearly indicate its special
characteristics, unique features, linkage to the specific geographical location
including human creativity involved and the environmental factors such as soil,
water and climatic condition may be clearly brought out. It shall also contain the
standard benchmark set by the producers of the geographical indication. Fixing
such a standard may be necessary for quality control, inspection and
enforcement of the geographical indication.
c. (c)Method of Production - The method of production, including the process
involved, the raw materials and tools, packaging specialty if any, etc. are alsoto
be described in detail.
d. (d) Uniqueness of the product -The comparison with other similar products to
establish the uniqueness of the goods for which registration is applied, is also to
be made in not more than 100 words.
e. Proof of Origin - Historic proof in the form of documentary evidence is to be
submitted, to prove the existence of the geographical indications such as,
gazetteers, published documents, news articles, advertisement materials, for
clearly bringing out the historic development of the geographical indications.
f. Inspection Body - The details of the Inspection Body set-up by the applicant to
monitor the production in respect of quality, integrity and consistency of the
product, as well as the genuine use of the geographical indication, is also to be
provided.
g. Present scenario of the GI of the product.t - This part shall elaborate the present
market of the GI product with the details of exports, if any, total turnover of the
product, and the activities undertaken by the applicant association in
development and promotion of the GI
3. A single application may be made for registration of a geographical indication for
different classes of goods and fee payable therefore shall be in respect of each such
class of goods.
4. Every application under sub-section (1) shall be filed in the office of the
Geographical Indications Registry within whose territorial limits, the territory of the
country or the region or locality in the country to which the geographical indication
elates is situated:

Provided that where such territory, region or locality, as the case may be, is not situated
in India, the application shall be filed in the office of the Geographical Indications
Registry within whose territorial limits the place mentioned in the address for services in
India as disclosed in the application, is situated.
5. Every application under sub-section (1) shall be examined by the Registrar in such
manner as may be prescribed.
6. Subject to the provisions of this Act, the Registrar may refuse the application or may
accept it absolutely or subject to such amendments, modification, conditions or
limitations, if any, as he thinks fit.
7. In the case of refusal or conditional acceptance of application, the Registrar shall
record in writing the grounds for such refusal or conditional acceptance and the
materials used by him in arriving at his decision.
WITHDRAWAL OF ACCEPTANCE Section 12 provides for withdrawal of acceptance of
an application for registration of a geographical indication, if the Registrar is satisfied
that (a) the application has been accepted in error, or (b) the geographical indication
should not be registered or should be registered subject to additional conditions or
limitations. The applicant shall be given an opportunity of being heard.

ADVERTISEMENT OF APPLICATION
Section 13 provides that where an application has been accepted, the Registrar shall
cause the same to be advertised in the prescribed manner together with conditions or
limitations, if any. The Registrar has been vested with the power to re-advertise an
application where an error has been corrected or where the application has been
permitted be amended under section 15. Section 15 empowers the Registrar to carry
out correction of any error or permit an amendment of the application whether before or
after acceptance.

OPPOSITION TO REGISTRATION
Any person may, within three months from the date of advertisement or
re-advertisement of an application or within such further period not exceeding one
month, as the Registrar allows, file a notice of opposition in writing to the Registrar. The
Registrar shall serve a copy of the notice so received on the applicant who shall send to
the Registrar a counter- Statement of the grounds on which he relies within two months,
failing which his application shall be deemed to have been abandoned. If the applicant
sends a counter statement, the Registrar shall serve a copy of it on the person giving
notice of opposition. The Registrar shall, after providing an opportunity of hearing to the
parties and considering the materials on record and the evidence, decide whether and
subject to what conditions or limitations, if any, the registration is to be permitted."

REGISTRATION
When an application has been accepted unopposed after advertisement or has been
opposed but decided in favour of the applicant, the Registrar shall, unless the Central
Government directs otherwise, register the geographical indication and the authorized
user, if any, mentioned in the application. The date of filing of the application shall be the
date of registration. The Registrar shall issue to each of the applicants and the
authorized user a certificate with the seal of the Geographical Indications Registry.
Where the registration of a geographical indication is not completed within 12 months
from the date of application by reasons of the applicant's defaults, the Registrar may
after giving notice, treat the application as abandoned unless it is completed within the
time specified in the notice.

AUTHORIZED USER
Since a registered geographical indication is a community intellectual property and the
registered proprietor is an organization or authority, the system of registration of
authorized user offers protection to the individual producers, manufacturers and traders
This system ensures the bonafide of a GI product dealt with or produced by a genuine
person and further ensures the protection to the consumers. Authorized users get the
exclusive right to use the registered geographical indication and can independently sue
an infringer; and also renew or restore such indications, if the registered proprietor fails
to renew the same. They further get the right to be implemented in any rectification
proceedings against a registered geographical indication or Appellate Board. It
imperative that every producer/dealer/manufacturer/trader/exporter to register as un
authorized user for their respective registered geographical indication for better
protection, increased market value and brand promotion of such geographical indication

Section 17 provides that any person claiming to be the producer of the goods in respect
of which a geographical indication has been registered, may apply to the Registrar for
registering him as an authorized user of such geographical indication. The procedure
relating to registering an authorized user of a registered geographical indication would
be similar to the procedure for the registration of a geographical indication. The
application is to be accompanied by prescribed fee, statement, and documents of facts,
required by the Registrar to determine as to whether such person is the producer of the
goods.
TERM OF GEOGRAPHICAL INDICATION
Section 18 provides that the registration of a geographical indication and authorized
user shall be for a period of 10 years. Both the registrations may be renewed from time
to time on the payment of prescribed fee for a term of 10 years from the date of last
renewal of registration for an indefinite period. However, if the renewal is not effected
within the prescribed or extended time, the geographical indication or the authorized
user, as the case may be, is liable to be removed from the records. Provision is also
made for the restoration of registration.

Where a geographical indication has been removed from the register for failure to pa
the renewal fee, it shall nevertheless be deemed to be a geographical indication on the
register, unless the tribunal is satisfied either (a) that there has been no bona fide trac
use of that geographical indication within two years immediately preceding its removal
or (b) that no deception or confusion would be likely to arise from the use of the
geographical indication."

Effect of Registration
No person is entitled to institute any proceeding to prevent infringement or recover
damages for the infringement of an unregistered geographical indication. The provision
only forbids the institution of proceedings for injunctions or damages. However, the
rights of action against any person for passing off goods as the goods of another person
or the remedies in respect thereof shall not be affected. This is a common law action for
deception which is expressly saved by the Geographical Indications Act.
RIGHTS CONFERRED BY REGISTRATION
Section 21 provides for the rights conferred by registration of a geographical indication.
The registration of a geographical indication shall provide:
(i) to the registered proprietor and the authorized user or users the right to obtain relief
in respect of infringement of such geographical indication;
(i) to the authorized user the exclusive right to the use of the geographical indication in
relation to the goods in respect of which the geographical indication is registered.
However, the right of authorized users to use geographical indication is subject to the
conditions and limitations to which the registration is subject. Two or more authorized
users registered geographical indication shall have co-equal rights.

INFRINGEMENT OF REGISTERED GEOGRAPHICAL INDICATION

A person, who is not an authorized user of a registered geographical indication,
infringes
it when he-
(i) uses such geographical indication by any means in the designations or presentation
of goods that indicates or suggests that such goods originate in geographical area other
than the true place of origin of such goods in a manner which misleads the persons as
to the geographical origin of such goods; or
(ii) uses any geographical indication in such manner which constitutes an 'act of unfair
competition including passing off in respect of registered geographical indication; or
(iii) uses another geographical indication to the goods which, although literally true O as
to the territory, region or locality in which the goods originate, falsely represents to the
persons that the goods originate in the territory, region or locality in respect of which
such registered geographical indication relates.
WHEN THERE IS NO INFRINGEMENT?
Where the goods in respect of which a geographical indication has been registered are
lawfully acquired by a person other than the authorized user of such geographical
indication, further dealing in those goods by such person including processing or
packaging does not constitute an infringement of such geographical indication, except
where the condition of goods is impaired after they have been put in the market.
REGISTRATION TO BE PRIMA FACIE EVIDENCE OF VALIDITY
A geographical indication once registered shall prima facie be evidence of the validity of
the registration and the certificate of registration shall be admissible in all courts and
before the Appellate Board in all legal proceedings relating to geographical indication
thout further proof or production of the original. However, the right of action in respect of
an unregistered geographical indication shall not be affected by the aforesaid provision.
PROHIBITION OF ASSIGNMENT OR TRANSMISSION
geographical indication is a public property. Any right to a registered geographical
dication is not a subject matter of assignment, transmission, licensing, pledge ,
mortgage.any such other agreement. However, on the death of an authorized user his
right in a stered geographical indication shall devolve on his successor in title.
Offences, Penalties and Procedure.
. APPLICATION OF GEOGRAPHICAL INDICATION TO GOODS
Section 37 elaborates the meaning of applying a geographical indication to the goods. It
provides that a person shall be deemed to apply a geographical indication to goods
who-(i) applies it to the goods themselves; or(ii) applies it to any package in or with
which the goods are sold, or exposed for sale, or had in possession for sale or for any
purpose of trade or manufacture;
(iii) places, encloses or annexes any goods which are sold, or exposed for sale, or had
in possession for sale or for any purpose of trade or manufacture, in or with any
package or other thing to which a geographical indication has been applied; or
(iv) uses a geographical indication in any manner reasonably likely to lead to the belief
that the goods in connection with which it is used are designated or described by that
geographical indication; or
(v) in relation to the goods uses a geographical indication in any sign, advertisement,
invoice, catalogue, business letter, business paper, price list or other commercial
documents and goods are delivered to a person in pursuance of a request or order
made by reference to the geographical indication as to use.graphical indication as to
use.
A geographical indication is deemed to be applied to goods, whether it is woven in,
impressed on, or otherwise worked into, or annexed or affixed to, the goods or to any
package or to any other thing.
FALSE GEOGRAPHICAL INDICATIONS
False geographical indication means any geographical indication which has been
falsified or falsely applied to goods.
Falsification of geographical indications
A person falsifies a geographical indication, who, either (i) without the assent of the
authorized user of the geographical indication makes that geographical indication of
deceptively similar geographical indication; or (ii) falsifies any genuine geographical
indication, whether by alteration, addition, effacement or otherwise."
False application of geographical indications
A person falsely apply to goods a geographical indication who, without the assent of the
authorized user of the geographical indication (i) applies such geographical indication or
a deceptively similar geographical indication to goods or any package containing goods;
or (ii) uses any package bearing a geographical indication which is identical with or
deceptively similar to the geographical indication of such authorized user, for the
purpose of packing, filling or wrapping therein any goods other than the genuine goods
of the authorized user of the geographical indication."
Burden of proof
In any prosecution for falsifying a geographical indication or falsely applying a
geographical indication to goods, the burden of proving the assent of proprietor shall lie
on the accused.
PENALTIES
Penalty for applying false geographical indications
Section 39 lays down the penalty for applying false geographical indication. It provides
that any person who-
(i) falsifies any geographical indication; or
(ii) falsely applies to goods any geographical indication; or
(iii) makes, disposes of, or has in his possession, any die, block, machine, plate or other
instrument for the purpose of falsifying or of being used for falsifying a geographical
indication; or
(iv) applies to any goods to which an indication of the country or place in which they
were made or produced or the name and the address of the manufacturer or person for
whom the goods are manufactured is required to be applied under section 71 a false
indication of such country, place, name or address; or (v) tampers with, alters or effaces
an indication of origin which has been applied to any goods to which it is required to be
applied under section 71; or
(vi) causes any of the above-mentioned things to be done, is, unless he proves that he
acted without intent to defraud, punishable with imprisonment for a term which shall not
be less than six months but which may extend to three years and with fine which shall
not be less than Rs. 50,000/- but which may extend to Rs. 2 lakhs.
However, the court may, for adequate and special reasons to be mentioned in the
judgment , impose a sentence of imprisonment for a term of less than 6 months or a fine
of less than Rs. 50,000/-,
Penalty for selling goods to which false geographical indication is applied
According to section 40, any person who sells, lets for hire or exposes for sale, or hires
or has in his possession for sale, goods or things to which any false geographical
indication is applied, or where section 71 is applicable, a false indication of country,
place, name or address is applied, is punishable with imprisonment for a term between6
months to 3 years and with fine between Rs. 50,000/- to Rs. 2 lakhs. For adequate and
special reasons, a lesser sentence or fine may be imposed.
However, no sentence may be awarded where that person proves (i) that, having
taken all reasonable precautions against committing an offence, he had at the time of
commission of the alleged offence no reason to suspect the genuineness of the e) that,
on demand by or on behalf of the prosecutor, he gave all the information in his power
with respect to the person from whom he obtained such goods or things; or (iii) that
otherwise he had acted innocently. Section 41 provides for enhanced penalty for second
or subsequent conviction under
Enhanced penalty on second or subsequent conviction
section 39 or 40. The term of imprisonment in such cases shall not be less than one
year but it may extend up to 3 years and fine of not less than Rs. 1 lakh which may
extend up to Rs. 2 lakhs. The discretion is vested with the courts to impose a lesser
punishment than the minimum punishment after recording in the judgment adequate
and special reasons for awarding such lesser punishment. Offenses under section 39,
40 or 41 shall be cognizable. No cognizance, however, shall be taken of any conviction
made before the commencement of the Act.
Where an alleged offense relates to a registered geographical indication and the act, or
omission is permitted under the Act or where the alleged offense relates to a registered
geographical indication and the act or omission is permitted under any other law for the
time being in force, the provisions of sections 39, 40 and 41 shall not be applicable. This
provision is available to an accused, in the nature of a defense ."
Penalty for falsely representing a geographical indication as registered.
If any person falsely represents that a geographical indication is registered; or that it is
registered in respect of any goods in respect of which it is not in fact registered; or that
registration of a geographical indication gives him an exclusive right to the use thereof
which it does not, then he shall be punishable with imprisonment for a term extendable
up to 3 years or with fine or with both.
The words ``registered" geographical indication or any other expression, symbol or sign
like "R.G.I." used in relation to a geographical indication may be deemed to importa
reference to registration in the register."
Penalty for falsification of entries in the register
According to section 44, if any person makes, or causes to be made, a false entry in the
register, or a writing falsely purporting to be a copy of an entry in the register, or
produces or tenders or causes to be produced or tendered, in evidence any such
writing. knowing the entry or writing to be false, he shall be punishable with
imprisonment for a term which may extend to two years, or with fine, or with both.
CHALLENGE OF VALIDITY OF REGISTRATION
Section 48 provides for the procedure where invalidity of registration is pleaded by the
accused against the charge under section 39, 40 or 41. Where the court is satisfied that
such defence is prima facie tenable, it may adjourn the proceedings for 3 months to
enable the accused to file an application for rectification of the register before the
Appellate Board. If the accused proves that he has made such application within the
stipulated time, further proceedings shall stand stayed till the disposal of the application
for rectification. On the other hand, if within the period allowed by the court, the accused
fails to apply for rectification before the Appellate Board, the court shall proceed with the
case as if the registration is valid.
Where an application for rectification is pending before the institution of the criminal
proceedings, the court shall stay the proceedings in the prosecution pending the
outcome of the rectification application and determine the charge in conformity thereof
to the extent that the complaint relies on the registration of his geographical indication.o
POWERS OF POLICE OFFICER OF SEARCH AND SEIZURE
Any police officer not below the rank of Deputy Superintendent of Police may, if he is
satisfied that any of the offenses referred in sections 39, 40 or 41 has been committed
or is being committed, or is likely to be committed, search and seize without warrant the
goods, die, block, machine, plates or other instruments or things involved in committing
the offence, wherever found. The seized material shall be produced before the Judicial
Magistrate as soon as practicable. However, the police officer before making any such
search or seizure shall obtain the opinion of the Registrar on the facts involved in the
offence relating to the geographical indication and shall abide by such opinion. smit
Any person having an interest in any article seized, may within 15 days of seizure, make
an application to the Judicial Magistrate for such article being stored to him. The
Magistrate, after hearing the application and the prosecution, shall make such order on
the application as he may deem fit.
PERIOD OF LIMITATION
Section 52 lays down a period of limitation for commencement of prosecution for an
offence. It provides that no prosecution for an offence under the Act shall commence
after the expiration of 3 years next after the commission of the offence charged or 2
years after the discovery thereof by the prosecutor, whichever expiration happens first.
FORFEITURE OF GOODS
Where a person is convicted of an offence under section 39, 40 or 41, or is acquitted of
an offence under section 39 or 40 for lack of intention to defraud or on proof of the
matters specified in section 41, the court may direct the forfeiture to Government of all
the goods and things by means of or in relation to which the offence has been
committed. The court may either order for the forfeited goods to be destroyed or
otherwise disposed of. Where an appeal lies against the conviction, the appeal shall lie
against the forfeiture also,
EXEMPTION OF PERSONS EMPLOYED IN ORDINARY COURSE OF Section 47
provides for the exemption from liability of certain persons employed in the ordinary
course of business who are accused of an offence under section 39, if they can
BUSINESS their innocence in the following circumstances:
(i) that in the ordinary course of his business he is employed on behalf of other persons
to apply geographical indications, or to make dies, blocks, machines, plates, or other
instruments for making geographical indications;
(ii) that in the case which is the subject of the charge he was so employed and was not
interested in the goods or other thing by way of profit or commission based on the sale
of such goods;
(ii) that having taken all reasonable precautions against committing the offence
charged, he had at the time of the commission of the alleged offence, no reason
to suspect the genuineness of the geographical indication; and (iv) that on the demand
of the prosecutor, he gave all the information in his power with respect to the persons on
whose behalf the geographical indication was applied.
OFFENCES BY COMPANIES
Section 49 provides that where a person committing the offence is a company, the
company as well as every person responsible in the company for the conduct of its
business will be liable. However, a person shall not be liable if he proves that the
offence was committed without his knowledge or that he exercised all due diligence to
prevent the commission.
Where an offence is committed by a company with the consent or connivance of or is
atributable to the neglect of any Director, Manager, Secretary or any other officer of the
company, then he shall also be deemed to be guilty and shall be liable to be proceeded
against and punished accordingly.
. PUNISHMENT FOR ABETMENT IN INDIA OF ACTS DONE OUT OF INDIA
if committed in India, would be an offence under this Act, he may be tried for such
betment in any place in India in which he may be found, and be punished therefor with
any person, being within India, abets the commission, without India, of any act which,
the punishment to which he would be liable if he had himself committed in that place the
act which he abetted.
Infringement and passing off: Procedure and Reliefs.
INSTITUTION OF THE SUIT BEFORE DISTRICT COURT
A suit (i) for the infringement of a registered geographical indication; or (ii) relating to any right
in a registered geographical indication; or (iii) for passing off arising out of the use by the
defendant of any geographical indication which is identical with or deceptively similar to the
geographical indication relating to the plaintiff, whether registered or unregistered shall be
instituted before the district court
having jurisdiction to try the suit. The term 'district court having jurisdiction' includes a district
court within the local limits of whose jurisdiction, the person or one of the persons instituting the
suit or proceeding actually and voluntarily resides or carries on business or personally works for
guin. The term 'person' includes the registered proprietor and the authorized user.
CIVIl REMEDIES
The Act provides for the following civil remedies for the infringement of a registered
geographical indication:
(i) Injunction
(ii) Damages or account of profits
(iii) Delivery-up of the infringing labels and indications.?
These remedies are inclusive, not exhaustive and the court may provide some other remedies in
addition to the aforesaid, such as Anton Piller order.
Injunction
Injunction includes temporary injunction and permanent injunction. Further, the court
may also order an ex parte injunction for:
(a) discovery of documents;

(b) preserving of infringing goods, documents or other evidence which are related to the
subject-matter of the suit; and
(c) restraining the defendant from disposing of or dealing with his assets in a manner
which may adversely affect plaintiff's ability to recover damages, costs or other
pecuniary remedies which may be finally awarded to the
plaintiff. The aforesaid remedy of injunction is more effective and can prevent a greater
harm to the plaintiff.
Damages or account of profits
The remedy of damages or account of profits is not cumulative but alternative. The
plaintiff has to elect one of the two remedies at an earlier stage of the suit. The remedy
of damages (other than nominal damages) or account of profits may be denied where
defendant satisfies the court that he was unaware and had no reasonable ground for
believing that the geographical indication of the plaintiff was registered when he
commenced to use it; and that when he became aware of the existence and nature of
the plaintiff's right in the geographical indication, he forthwith ceased to use it."
Delivery-up of the infringing labels and indications
It is in the discretion of the court to order the defendant to deliver-up the infringing labels
and indications for destruction and erasure. The court by taking relevant circumstances
into account may or may not order for such remedy.
PASSING OFF
All the aforesaid remedies which are available for the infringement of a registered
geographical indication, are also available in a passing off action in case of an
unregistered geographical indication.
In Scotch Whisky Association v. Golden Bottling Ltd., the plaintiff brought an action for
passing off against the defendant, who was manufacturing and selling "Red Scotch"
whisky. The plaintiff argued that the word "Scot" or "Scotch" is a geographical indication
within the meaning of article 22.1 of the TRIPS Agreement in as much as it identifies
whisky produced in Scotland. Agreeing with the plaintiff, the court held that "defendant
is liable to be restrained from passing off its "Red Scot" whisky as a produce of
Scotland. This can only be done by injuncting the defendant from using the word "Scot"
or any other word similar thereto in the whisky manufactured by i t^ ,,6 In addition to the
relief of permanent injunction, the court also granted damages to the extent of Rs. 5
lakhs as prayed by the plaintiff.""Defendant is liable to be restrained from passing off its
"Red Scot" whisky as a produce of Scotland. This can only be done by injuncting the
defendant from using the word "Scot" or any other word similar thereto in the whisky
manufactured by i t^ ,,6 In addition to the relief of permanent injunction, the court also
granted damages to the extent of Rs. 5 lakhs as prayed by the plaintiff."
STAY OF PROCEEDINGS
Section 57 deals with the circumstances in which stay of infringement proceedings can
be ordered. It provides that where in any suit for infringement of a geographical
indication,passing off: Procedure and Reliefs the defendant pleads that registration of
the geographical indication relating to plaintiff is invalid, the court shall if any proceeding
for rectification of the register to the geographical indication relating to plaintiff or
defendant are pending before the Registrar or the Appellate Board, stay the suit
pending the final disposal of such proceedings. If no are pending and the court is
satisfied that the plea regarding the invalidity of the registration of the geographical
indication relating to plaintiff or such proceedings defendant is prima facie tenable, raise
an issue regarding the same and adjourn the case for a period of three months from the
date of framing of the issue in party concerned to apply to the Appellate Board for order
to enable the rectification of the register. been abandoned and If no application is made
within the specified time, the issue as to the validity of the registration of geographical
indication shall be deemed to have the court proceed with the suit in regard to the other
issues in the case.
The stay of a suit for the infringement of a geographical indication shall not preclude the
court from making any interlocutory order (including any order granting an
injunction,directing account to be kept, appointing a receiver or attaching any property)
during the period of the stay of the suit.
APPLICATION FOR RECTIFICATION IN INFRINGEMENT CASES
Section 58 provides that where in a suit for infringement of a registered geographical
indication (i) the validity of the registration of the geographical indication relating to
plaintiff is questioned by the defendant or (ii) where plaintiff questions the validity of the
registration of the geographical indication relating to defendant, the issue as to the
validity of the registration of the geographical indication shall be determined only on an
application for the rectification of the register. Such an application shall be made to the
Appellate Board and not to the Registrar.
However, where an application for rectification is made to the Registrar under section
27, the Registrar may refer the application at any stage of the proceedings to the
Appellate Board.
GROUNDLESS THREATS OF LEGAL PROCEEDINGS
Where a person threatens another person by means of circulars, advertisements or
otherwise, with an action or proceedings for infringement of a geographical indication
which is registered or alleged to be registered, the aggrieved person may, bring a suit
against the person making the threats, whether he is or not the registered proprietor or
the authorized user of the geographical indication, and obtain a declaration to the effect
that the threats are unjustifiable, and an injunction against the continuance of the
threats and may recover such damages, if any, as he has sustained. However, no such
relief will be available, if the person making the threat satisfies the court that the
geographical indication is registered and that the acts in respect of which proceedings
were threatened, constituted, or if done, would constitute an infringement of the
geographical indication.
The registered proprietor or an authorized user of a geographical indication is also
protected where he commences or prosecutes an action with due diligence for
infringement of the geographical indication against the person threatened."
Introduction
In order to provide for the establishment of an effective system for the protection of plant varieties, the
rights of farmers and plant breeders and to encourage the development of new varieties of plants it has
been considered necessary to recognize and to protect the rights of the farmers in respect of their
contributions made at any time in conserving, improving and making available plant genetic resources for
the development of new plant varieties. The Govt. of India enacted “The Protection of Plant Varieties and
Farmers' Rights (PPV&FR) Act, 2001” adopting sui generis system. Indian legislation is not only in
conformity with the International Union for the Protection of New Varieties of Plants (UPOV), 1978, but
also has sufficient provisions to protect the interests of public sector breeding institutions and the farmers.
The legislation recognizes the contributions of both commercial plant breeders and farmers in plant
breeding activity and also provides to implement TRIPs in a way that supports the specific
socio-economic interests of all the stakeholders including private, public sectors and research institutions,
as well as resource-constrained farmers.
The PPV&FR Act recognizes the multiple roles played by farmers in cultivating, conserving, developing
and selecting varieties. With regard to developing or selecting varieties, the Act refers to the value added
by farmers to wild species or traditional varieties/ landraces through selection and identification for their
economic traits. Accordingly, farmers’ rights encompass the roles of farmers as users, conservers and
breeders. Farmers are granted nine specific rights, which are as under:
Section 39 under “The Protection of Plant Varieties and Farmers' Rights (PPV&FR) Act, 2001”
Farmers’ rights.

(1)Notwithstanding anything contained in this Act,-

(i) a farmer who has bred or developed a new variety shall be entitled for registration and other protection
in like manner as a breeder of a variety under this Act;

(ii) the farmers' variety shall be entitled for registration if the application contains declarations as specified
in clause (h) of sub-section (1) of section 18;

(iii) a farmer who is engaged in the conservation of genetic resources of land races and wild relatives of
economic plants and their improvement through selection and preservation shall be entitled in the
prescribed manner for recognition and reward from the Gene Fund:

Provided that material so selected and preserved has been used as donors of genes in varieties
registrable under this Act;

(iv) a farmer shall be deemed to be entitled to save, use, sow resow, exchange, share or sell his farm
produce including seed of a variety protected under this Act in the same manner as he was entitled before
the coming into force of this Act:
Provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act.

Explanation.--For the purpose of clause (iv), "branded seed" means any seed put in a package or any
other container and labelled in a manner indicating that such seed is of a variety protected under this Act.

(2) Where any propagating material of a variety registered under this Act has been sold to a farmer or a
group of farmers or any organisation of farmers, the breeder of such variety shall disclose to the farmer or
the group of farmers or the organisation of farmers, as the case may be, the expected performance under
given conditions, and if such propagating material fails to provide such performance under such given
conditions, the farmer or the group of farmers or the organization of farmers, the case may be, may claim
compensation in the prescribed manner before the Authority and the Authority, after giving notice to the
breeder of the variety and after providing him an opportunity to file opposition in the prescribed manner
and after hearing the parties, may direct the breeder of the variety to pay such compensation as it deems
fit, to the farmer or the group of farmers or the organization of farmers, as the case may be.

Right 1: Access to seed [Section 39(1)(iv)]

Farmers are entitled to save, use, sow, re-sow, exchange, share or sell their farm produce, including seed
of protected varieties, in the same manner as they were entitles to before the coming into force to the
PPV&FR Act. However, farmers are not entitled to sell branded seed of a variety protected under this Act.
Farmers can use farm saved seed from a crop cultivated in their own.

Right 2: Benefit sharing [Section 26]

Plant breeders and legal entities including farmers who provide Plant Genetic Resources (PGR) to
breeders for developing new varieties shall receive a fair share of benefit from the commercial gains of
the registered varieties. Out of all the national plant variety protection laws enacted since 2001, the
PPV&FR Act is the first that integrates a provision for access and benefit-sharing (ABS) along with Plant
Breeder’s Rights (PBRs). Accession of the genetic resource used in breeding is permitted under the
Biological Diversity Act, 2002. However, the PPV&FR Act requires a breeder to make a sworn declaration
on the geographical origin of the genetic resources used in the pedigree of the new variety, and its
accession.

Right 3: Compensation [Section 39(2)]

Registered seed must be sold with the full disclosure of their agronomic performance under
recommended management conditions. When such seed is sold to farmers but fails to provide the
expected performance under recommended management conditions, the farmer is eligible to claim
compensation from the breeder through the intervention of the PPV&FR Authority.

Right 4: Reasonable seed price [Section 47]

Farmers have the right to access seed of registered varieties at a reasonable and remunerative price.
When this condition is not met, the breeder’s exclusive right over the variety is suspended under the
provision concerning compulsory licensing, and the breeder is obligated to license the seed production,
distribution and sales of the variety to a competent legal entity. Most of the laws for plant variety
protection have provisions on compulsory licensing of protected varieties to ensure adequate seed supply
to farmers, and several of them also use unfair pricing as grounds for compulsory licensing.

Right 5: Farmers’ recognition and reward for contributing to

conservation [Section 39(i)(iii) & Section 45(2)(C)]
Farmers who have been engaged in PGR conservation and crop improvement, and who have made
substantial contributions in providing genetic resources for crop improvement, receive recognition and
rewards from the national gene fund. The gene fund receives resources from the implementation of the
Act, which in turn are complemented by contribution from national and international organizations. The
expenditures of the fund are earmarked to support the conservation and sustainable use of PGR, and in
this way it can be considered to be a national equivalent to the global benefit-sharing fund operating
within the International Treaty on Plant Genetic Resources for Food and Agriculture.
Since 2007, the Plant Genome Saviour/Community awards, associated with the national gene fund, has
been rewarding farming communities and individual farmers for their contribution to in-situ and on farm
conservation to the selection of PGR. The Authority in consultation with Government of India, has
established five Plant Genome Saviour Community Awards of Rs 10 Lakh each along with citation and
memento to be conferred every year to the farming communities for their contribution in the conservation
of Plant Genetic Resources.
In accordance with the Protection of Plant Varieties and Farmers’ Rights (Recognition and Rewards from
the Gene Fund) Rules, 2010 the Authority also setup ten Plant Genome Saviour Farmer Reward of Rs 1
Lakh each with citation & memento and also twenty Plant Genome Saviour Farmer Recognition annually
from 2012-13 to the farmers engaged in the conservation of the Genetic Resources of the landraces and
wild relatives of economics plants and their improvement through selection and preservation.

Right 6: Registration of farmers’ varieties [Section 39(1)(iii)]

The PPV&FR Act allows for the registration of existing farmers’ varieties that fulfill requirements for
distinctness, uniformity, stability and denomination, but does not include that of novelty. This right
provides farmers with a one-off opportunity for a limited period of time, from the moment when a crop
species is included in the crop portfolio under the PPV&FR Act for registration. Once registered, these
varieties are entitled to all PBRs.

Right 7: Prior authorization for the commercialization of essentially

derived varieties [Section 28 (6)]
When farmers’ varieties, whether extant or new, are used by a third party as source material for the
development of an essentially derived variety, the farmers need to provide prior authorization for its
commercialization. Such a process can allow farmers to negotiate the terms of authorization with the
breeder, which may include royalties, benefit-sharing, etc.

Right 8: Exemption from registration fees for farmers [Section 44]

Under PPV&FR Act, farmers have the privilege of being completely exempted from payment of any kind
of fees or other payments that are normally payable for variety registration; tests for distinctness,
uniformity and stability (DUS), and other services rendered by the PPV&FR Authority; as well as for legal
proceedings related to infringement or other causes in courts, tribunal, etc.

Right 9: Farmer protection from innocent infringement [Section 42]If a

farmer can prove before court that he or she was not aware of the existence of any rights at the time of an
infringement on any such rights, as detailed in the PPV&FR Act, he or she will not be charged. Thi
provision is made in consideration of the centuries-old unrestrained rights that the farmers had over the
seed of all varieties, the novel nature of the PPV&FR Act and the poor legal literacy of farmers.

International regime of Geographical Indication

The international regime of geographical indications (GIs) constitutes a framework
designed to protect and regulate the use of names associated with specific
geographical locations for certain products. GIs are crucial in safeguarding the cultural
and economic interests of communities tied to the production of distinctive goods that
derive their unique characteristics from their geographic origin. This regime involves
international agreements, treaties, and organizations working collaboratively to establish
standards, provide legal protection, and promote fair trade practices. This essay
explores the significance, evolution, challenges, and future prospects of the
international regime of geographical indications.
Protection Of Geographical Indication Prior To The Trips Agreement
Three global multilateral assertions tended to the insurance of land signs preceding the TRIPs
Agreement. The Paris Convention for the assurance of mechanical property of 1883 denies false signs
through more extensive measures.The Madrid Agreement for the Repression of False or Deceptive
Indications of Source on Goods of 1891 primarily accommodates more extensive measures and avoids
weakening of certain topographical signs into nonexclusive terms.
At long last, the Lisbon Agreement for the assurance of Appellations of inception and their International
Registration of 1958 accommodates a worldwide enrollment arrangement of topographical signs and strict
security. As the accompanying dialog will delineate, two challenges describe the condition of geological
signs insurance through multilateral understanding before TRIPs. The assertion either leaves the extent
of insurance vague (and powerful security subsequently relying on the goodwill of every part nation), or
requires a standard of consistency to guarantee successful assurance yet at the cost of low enrollment.
Both the Paris Convention and Lisbon assertion impacted the arrangements of the TRIPs understanding
when all is said in done, however especially on account of geological signs. Substantive arrangements
contained in Articles 1 to 12 and 19 of the Paris Convention (1967) were consolidated in the TRIPs
assertion in regard of the base standard concerning the accessibility extension and utilization of protected
innovation, the requirement of the licensed innovation rights and the procurement and fundamental
tenancy of licensed innovation rights and related entomb parties systems.
This has had no under three fundamental results:
1. with the substantive game plans of the Paris Tradition, generally Article 3 through 12 and
Article 19 paying little notice to the probability that they were not signatories of the
Convention;
2. all WTO individuals are bound by a near Showing of the Paris Custom (Stockholm Exhibit of
1967); and
3. the strategies of the Paris Convention consolidated in the Treks explanation curve up
perceptibly subject to the WTO examine settlement instrument.