The Geographical indication has achieved its recognition and significance universally but its nature and character owes to a local links of its area. Its commercial recognition causes its significance. In the commercial market certain geographical names like ‘Kohlapuri Slippers’ in India have acquired a lot of reputation. A few of agricultural goods, natural goods, manufactured goods, handicrafts, food stuff carry their reputation they attract the customers and obtain their faith.
Those kind of goods indicate and appeal to the customers with their origin by geographical indication.
Sometimes the geographical names and the customers with their origin by geographical names and the customers also acknowledge the goods for genuiness.
Sometimes the geographical indications of goods are also infringed. For the protection and registration of geographical indication of goods and to remove deception and confusion of originally, a certain legislation has been enacted which is known as the Geographical Indications of goods and to remove deception and confusion of originality, a certain legislation has been enacted which is known as the Geographical Indications of Goods (Registration and Protection) Act, 1999 in India.
In case of the geographical indication the territorial jurisdiction is the basis and the pecuniary interest is the sole purpose of it.
This concept of intellectual property of geographical indication is to some extent different from the other kinds of intellectual property in nature and character. It is confused within a particular territory of land which is not so in case of other IPRs.
In the field of intellectual property rights the geographical indication is being treated exceptionally for the following factors.
The geographical indication is an area based IPR. It does not relate to any single author like the other streams of the intellectual property rights. This is not question of intellect of any individual. This reflects and secures the productive capacity of a particular geographical area.
When a product is produced within a particular territory it can not be exploited economically in any other place.
There has to be a local impact of such produce. It should have a local impact for which its identify will go up slam. The local people will be aware of its value.
There must be a public approach behind holding a good produced as a geographical indication. Here ‘public approach’ means a collective approach for protecting the same. Without a public feeling there cannot be any geographical indication.
First of all the public of the place where the product is produced are to be aware of the same. Until and unless the goods produced is taken care of the Local Public this is not possible to recognize a geographical indication.
Where a particular product is produced in a particular area by the people then it is for the credit of that place where in the same is produced. In fact the protection of law of that particular intellectual property is for increasing the financial strength of the producers and for establishing justice by preventing the infringment of their intellectual property right over that class and / or category of product.
The Indian Legislature has passed an enactment named the Geographical Indications of Goods (Registration and Protection) Act, 1999.
A Indication S.2 (g)
It includes any name, geographical or figurative representation of any combination of them conveying or suggesting the geographical origin of goods to which it applies.
An indication which identifies the goods as originating in the territory of a country or a region or locality in the territory, where a given quality, reputation or other characteristics of goods is essentially attributable to its geographical origin.
B. Geographical indication, in relation to goods S.2(e)
Geographical indication, in relation to goods, means an indication which identifies such goods as agricultural goods, natural goods or manufacture goods as originating or manufactured in the territory of country, 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 example, “Darjeeling Tea”, “Benaras Silk”, “Basmati Rice” “Scotch” etc. are the geographically representation for indicating the origin of tea from Darjeeling, silk from Benaras, rice from North-West India and wine from Scottland.
C. “Registered proprietor” in relation to a geographical indication S.2(c)
It means any association of persons of producer or any organization for the time being entered in the register as proprietor of the geographical indication.
D. Authorized user of a geographical indication registered under Section 17.
Any person claiming to be a producer of the goods in respect of a geographical indication has been registered under section 16 may apply in writing to the Register in the prescribed manner for registering him as an authorized user of such geographical indication.
E. Deceptively similar S.2(C)
Geographical indication shall be deemed to be deceptively similar to another geographical indication if it so nearly resembles that other geographical indication as to be likely to deceive or cause confusion.
F. Producer in relation to goods S.2(k)
It means any person who –
i) if such goods are agricultural goods, produces the goods and includes the person who processes or packages such goods.
ii) If such goods are natural goods, exploits the goods.
iii) If such goods are handicraft or industrial goods, makes or manufactures the goods and includes any person who trades or deals in such production, exploitation, making or manufacturing as the case may be of the goods.
Any association of persons or producers or any organization or authority representing the interest of goods can make an application to the Registrar of Geographical Indications.
The application shall contain :
The application shall be accompanied by the prescribed fee and in such a form as may be prescribed.
i) A statement of name of the territory region or locality where the goods originated in respect of special quality, reputation or other characteristics.
ii) Geographical map of the territory of the country or region or locality;
iii) Class of goods to which the geographical indication shall apply.
iv) The particulars regarding the appearance of the geographical indication.
v) A statement containing the particulars of the producers of the concerned goods.
The application shall be filled in the office of the Geographical Indications Registry.
After the acceptance of an application for registration of a geographical indication but before its registration, the Registrar is satisfied –
i) that the application has been in error or
ii) that in the circumstances of the case the geographical indication should not be registered.
The Registrar may, after hearing the applicant if he so desires, withdraw the acceptance and proceed as if the application had not been accepted.
Then an application for registration of a geographical indication has been accepted, the Registrar shall cause the application as accepted together with the conditions or limitation to be advertised in such a manner as may be prescribed.
Any person may, within three months from the date of advertisement of an application for registration, give notice in writing in the prescribed manner to the Registration of opposition to the registration.
When an application for registration of geographical indication has been accepted and either –
i) the application has been opposed and the time for notice of opposition has expired; or
ii) the application has been opposed and the opposition has been decided register the said geographical indications.
On the registration of a geographical indication the Registrar shall issue each to the application and the authorized users, if registered with the geographical indication, a certificate in such form as may be prescribed of the registration of it, sealed with the seal of the Geographical Indication Registry.
The registration of the geographical indication shall be for a period of ten years. It shall be renewed from time to time.
If the renewal is not made within prescribed time or the prescribed fee is not paid for renewal, the geographical indication and the name of the authorized user are both shall be removed form the records.
Once a geographical indication of goods is registered the authorized user whose name is in the register has the right to obtain relief against infringement of geographical indication.
Two or more authorized users of a registered geographical indication shall have equal rights.
A geographical indication once registered, the registration certificate shall be prima facie evidence and it shall be admissible to all courts and to the Appellate Board.
As the geographical indication is a public property, once registered, the Act prohibits any assignment, licensing, mortgaging etc. of such geographical indication. Provided that on the death of an authorized user his right shall devolve on his successor in title for the time being in force.
International Property rights was the national and territorial in nature. They were not operated outside the national territory. The territorial nature of it has long been a problem to right holders whose works, inventions marks etc., were the subject of transnational trade. A number of countries as exporters of intellectual property realized that there would be requirement of bilateral treaties. They provided for multilateral arrangement such as Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works.
The principle of these conventions was the member states of the Paris and Berne Union – Country A should offer the same protection to other member states – country B as the country A gives to its own nationals.
Another principles is the national treatment which allows countries the autonomy to develop and enforce their own laws.
One of the aims of intellectual property law was to reduce the inconvenience caused by registration.
In the case of trade marks, a mechanism was developed whereby a national trade mark owner was entitled to make an application for international registration which would take effect almost automatically in respective designated countries. Although this similar procedure for international application as to patent was not developed before 1970.
The Paris and Berne Conventions have been revised on several occasions. A number of new treaties have been formulated.
A registration of a trade mark can be refused or invalidated if it contains or consists of geographical indication with respect to the goods or class of goods not originating in the territory of a country or a region or locality in that territory.
A registration of a trade mark can also be refused or invalidated if the use of the geographical indications in the trade mark for such goods, is of such nature as to confuse or mislead the persons with respect to the true place of origin of such goods or class of goods.
The provisions of the law of geographical indications shall not prejudice to the registrability or the validity of the registration of such trade mark under the law relating to the trade mark for the time being in force or the right to use such trade mark, on the ground that such trade mark is identical with or similar to such geographical indications.
It is provided that no action in connection with the use of registration of a trade mark shall be taken after the expiry of five years from the date on which such use or registration infringes any geographical indications registered under the law of geographical indication has become known to the registered proprietor or authorized user registered in respect of such geographical indication or after the date of registration of the trade mark under the trade marks law subject to the condition that the trade mark has been published.
i) Any person who –
(a) falsifies any geographical indications; or
(b) falsely applies to goods any geographical indication; or
(c) makes, disposses of, or has in his possession, any die, block machine, plate or other instrument for the purpose of falsifying geographical indication; or
(d) applies to any goods to which an indication of the country or place in which they were made, or the name and the address of the manufacture, a false indication of such country, place, name or address; or
(e) tampers with alters or effaces an indication of origin, which has been applied to any goods under section 71; shall be 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 fifty thousand rupees but which may extend to two lakh rupees.
iii) 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 or geographical indication is applied, shall be 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 fifty thousand rupees but which may extend to two lakh rupees.
iv) Whoever has already been convicted of the offence of false geographical indication is again convicted of the same offence, shall be punishable for the second and for every subsequent offence, with imprisonment for a term which shall not be less one year but which may extend to three years and with fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.
v) If any person makes or causes to be made a false entry in the register, he shall be punishable with imprisonment for a term which may extend to two years or with fine, or with both.
vi) If the person committing an offence is a company, the company as well as every person in charge of, and responsible to the company for the conduct of its business at the time of the commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
The geographical indication is specially recognisation terms of the reflectual property rights it has brought new horizon in the field of the intellectual property taken.
At present there is no specific law governing geographical indications of goods in the country which could adequately protect the interests of producers of such goods. Exclusion of unauthorized persons from misusing geographical indications would serve to protect consumers from deception add to the economic prosperity of the producers of such goods and also promote goods bearing Indian geographical indications in the export market. Unless a geographical indication is protected in the country of its origin, there is no obligation under the Agreement on Trade Related Aspects of Intellectual Property Rights (TrIPS) for other countries to extend reciprocal protection India would, on the other hand, be required to extend protection to goods imported from other countries which provide for such protection. In view of the above circumstances, it is considered necessary to have a comprehensive legislation for registration and for providing adequate protection for geographical indications. Hence the Bill.
2. The Bill has the following salient features
a) definitions of several important terms like “geographical indication”, “goods”, Produces, packages, registered proprietor authorized user etc.
b) Provision for the establishment of a Geographical Indications Registry.
c) Provisions for the maintenance of a Register of Geographical Indications in two parts – Part A and Part B and use of computers etc, for maintenance of such registers while Part A will contain all registered geographical indications., Part B will contain particulars of registered authorized users.
d) Registration of geographical indications of goods in specified classes.
e) prohibition of registration of certain geographical indications.
f) provision for framing of rules by Central Government for filling of application, its contents and matters relating to substantive examination of geographical indication applications.
g) compulsory advertisement of all accepted geographical indication applications and for inviting objections.
h) Registration of authorized users of registered geographical indications and providing infringement action either by a registered proprietor or an authorized user.
i) provision for the renewal, rectification and restoration of geographical indications and authorized user.
j) provisions for higher level of protection for notified goods.
k) prohibition of assignment, etc, of a geographical indication as it is a public property.
l) Prohibition of registration of geographical indication as trade mark.
m) appeal against Registrar’s decisions would lie to the intellectual property appellate board established under the trade marks legislation.
n) provision relating to offences and penalties.
o) provision detailing the effects of registration and the rights conferred by registration
p) Provisions for reciprocity, powers of the Registrar, maintenance of index protection of homonymous geographical indications etc.
There are certain differences between geographical indication and trade mark which can be enumerated as :
i) Geographical indication is a public property whereas trade mark is a private property.
ii) Geographical indication protects the goods by its territorial or local names from any deception whereas trade mark indicates and protects the quality of goods owned by the proprietor.
iii) As the geographical indication of goods is a public property it cannot be assigned and transmitted whereas the trade mark being a private property can be assigned and transmitted.
iv) The Deradhun Rice, “Darjeeling Tea” are the example of the geographical name of goods.
GEORGIA by name and BISK FARM by picture on packing are example of trade marks.
Where a country being a member of a group of countries or union of countries of any Inter-Governmental Organisation specified by the Central Government does not accord to citizens of India the same rights in respect of the registration and protection of geographical indications as it accords to its own nationals, no nationals of such country or union of countries or Inter-Governmental Organisation shall be entitled –
i) to apply for the registration of or be registered as the proprietor of geographical indications.
ii) To apply for registration or be registered as an authorized user of a geographical indication.
In view of the fulfillment of a treaty, convention or arrangement with any country or a country which is a member of a group of countries or union of countries or inter-Governmental Organisations outside India which affords to citizens of India similar privileges as granted to its own citizens, the Central Government may, by notification in the Official Gazette, declare such country or group of countries or union of countries or inter-Governmental Organisation to be a convention country or convention countries for the purpose of the law of geographical indications.
The powers of the Registrar of the Geological Indications are the following :
a) receiving evidence.
b) Administering oaths.
c) Enforcing the attendance of witnesses.
d) Compelling the discovery and production of documents; and
e) Issuing commissions for the examination of witnesses.
ii) the Registrar may make such orders as to costs as he considers reasonable, and any such order shall be executable as a decree of a civil court.
iii) the Registrar may, on application made in the prescribed manner, review his own decision.
iv) he has power to enter any change in the name, address or description of the association of persons, of producers or any organization or authority who is registered as proprietor of a geographical indication on the register;
v) he can strike out any goods or class or classes of goods in respect of which a geographical indication is registered from the register.
The registered proprietor and the authorized user of the geographical indication have the exclusive right in relation to goods :
I. they are entitled to obtain relief in respect of infringement of geographical indication by others.
II. They can use the geographical indications by printing on packages, containers etc.
III. The geographical indication may be embossed or woven into or affixed to the goods, it may be used in their letter heads.
IV. It may be used in all advertisement or all advertising materials including electronic media and display.
V. The geographical indication may be used in labels tags, and in water marks.
The registered proprietor and the authorized user sells such goods that seems to be genuine and their geographical indication are not deemed falsely acquired or falsely applied.
As the property of geographical indications are public property, the right to the property are not transferable in any manner such as licensing, pledge or sale. The rights are heritable, they cannot be transferred through a will.
Assignment or transmission of a registered geographical indication of goods is also prohibited.
In order to discover new comprehensive subjects in respect of intellectual property rights, create norms in the form of convention, treaty and agreement, some bodies are formed. Those are treated as International Regime.
In respect of geographic indications remedies available against infringement through damages where plaintiff can claim a decree for money against infringer for loss suffered or for profits gained by the infringer. And, through injuction the court not below the District Court may order the infringer to restrain or refrain from continuing act of infringement.
V) Geographical Indication is an indication which identifies agricultural, natural manufactural, handicrafts, goods as originating or manufactured in a region, locality and territory or a country where a given quality, reputation of such goods is essentially attributable to its geographical origin.
The law of geographical indication confers the right to prevent competitors from commercially exploitation of the respective goods to the detriment of the registered proprietor.
An indication which identifies such goods as agricultural goods, natural goods, manufactured goods, as originated or manufactured in the territory of a country, or a region or locality in that territory of a country a region of locality in the territory, where a given quality, reputation or other characteristic or such goods is essentially attributable to its geographical origin.
Intellectual property rights grow the interest of doing work of the inventor or owner or proprietor when they are exploited commercially. Those rights are conferred by the legislations. If anybody contravenes the provisions of rights under legislations, they will come under penal provisions.
Patents trade marks, copyright, designs and geographical indications of goods are the classification of intellectual property.
They are used according to their nature in view of growing human beings intellectual capacity to works establishment and growth of industries, span of communication throughout the world and finally development of own country.
The register shall be kept at the office of the Geographical Indications Registry.
The names, addresses and descriptions of both the proprietor and the authorized user and such other matter relating to registered geographical indications as may be prescribed shall be entered.
The register is also maintained wholly or partly in computer floppies or diskettes or in any other electronic form.
The register shall be divided into two parts called part A and part B.
The part A contains the particulars relating to the registration of the geographical indications.
The part B contains the particulars relating to the registration of the authorized user.
A registered geographical indication is infringed by a person not being an authorized user :
1. user such goods originate in some other geographical area other than the true place of origin of the goods which misleads the public; or
2. uses any geographical indication in such manner that constitutes an act of unfair competition including passing off in respect of registered geographical indication; or
3. uses another geographical indication to the goods which although literally true as to the territory, region or locality in which the goods originate, falsely represent to the public that the goods originate in the region, territory or locality in respect of which such registered geographical indication relates.
The relief which the District court may grant in any suit for infringement or for passing off.
At the option of the plaintiff, the court may grant either damages or account of profits, together with or without any order for the delivery up of the infringing labels and indication for destruction or erasure.
The court shall not grant relief by way of damages, on account of profits in any case.
i) where in a suit for infringement the defendant satisfies the court – that he was unaware at the time he commenced to use the geographical indication, and had no reasonable ground for believing that the geographical indication relating to the plaintiff was in use.
ii) Where in a suit for passing off, the defendant satisfies the court that he was unware at the time he commenced to use the geographical indication.
“Basamati Rice” with fragrance usually grows in the slope area of the Himalayas, the North of India.
One of the US company identified that the molecules which gives fragrance to the rice.
It used to grow in the US green houses.
These type of seed developed by biotechnological process was patented in the US.
The Government of India took up the matter with US patent and could not stop it on the violation of geographical indication in the issue patenting a geographical indication name an the World Trade Organisation did not give any assistance. Even India did not have its own legistlation for registration of geographical indications to protect it.
As a result, the Government of India enacted the Geographical Indications of Goods (Registration and Protection) act, 1999.
Intellectual property includes certain rights as propounded by the convention held in Stockholm on July 14, 1967 while establishing the World Intellectual Property Organisation (WIPO) in respect of :-
1. Literary, artistic and scientific works.
2. Performances of performing artists, phonograms and broadcast;
3. Inventions in all fields of human endeavour.
4. Scientific discoveries.
5. Industrial design.
6. Trade marks, service marks, commercial names and designations and
7. All other rights resulting from intellectual activity in the industrial scientific, literary or artistic fields.
Those rights are conferred by the respectives legislations which can be summed up as :
1. rights of the inventor for the patent under the patents Act, 1970.
2. right of the registered proprietor in respect of trade mark under the Trade Marks Act, 1999.
3. right of owner in respect of copyright under the Copyright Act, 1957.
4. right of the proprietor in respect of the designs registered under the Designs Act, 2000.
5. Rights of the registered proprietor in relation to goods identified as geographical indication under the Geographical Indications of Goods (Registration and Protection) Act, 1999
Intellectual property is a new form of property which obtains greater recognition in international legal system. Its importance is ever increasing because it has greater components in world trade e.g. international trade. Through expanding its effect the relation emerges and also maintains a principle of reciprocity among the countries.
A registered proprietor is entitled to use such goods that is essentially attributable to its geographical origin
There is one question we must remind why we should grant intellectual property rights and give a legal form as it is intangible property.
Actually, intellectual property induces and encourages inventors, authors, traders, etc. and promotes their skill and conduct.
For example the patent system provides inventors to disclose technical information to the public at large which would otherwise keep it secret.
The justification of legal protection of designs is to provide incentives and to give inspiration for the production of new designs.
As the intellectual property is said to be a nature of personal property ,the inventor ,author , owner always seek assistance of the intellectual property law.
The geographical indications of goods (Registration and Protection) Act has been enacted in 1999 with a view to give protection the geographical indication relating to goods and provides for the registration and keep interest of the registered proprietors and authorized users from the deception exercised by unauthorized persons.
The customers can acknowledge the identification of speciality of the goods where it is originated from.
Any association of persons or producers or any organization intending to deal with the goods of substantial name as to geographical indication may apply to the Registrar of Geographical Indications.
After registration they can get a special identitity in the eye of law. And, whoever falsified the geographical indication of goods belonging to them shall be prosecuted.
