Transcript Geographical Indications Indian Perspective

Geographical Indications
An Indian Perspective
Sanjay Kumar
3rd May 2006
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Scope of Presentation
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Geographical Indications – Introduction
Current
International
Geographical Indications
debate
on
Overview of the Indian GI registration
system
Geographical Indications as a tool for
developing countries
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Intellectual Property
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Outcome of one’s intellectual efforts
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Different from other forms of property
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Incentive to create – reward
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Advantage in Competition - creates Monopoly right
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Sources of IP Law
– Article 38 – ICJ
– Treaty Law
– Customary International Law
– Precedents and Doctrines
– General principles of law
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TRIPS Agreement
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Copyright and related rights
Trade marks
Geographical Indications (GIs)
Industrial designs
Patents
Layout designs of integrated circuits
Protection of undisclosed information
Control of anti-competitive practices in contractual
licences
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GIs – the concept
 GIs
are essentially the DNA of Nature
impregnated into the Mother Earth –
difficult
to
clone
and
beyond
scientific calculation.
 GIs
are about culture, geography,
traditions, heritage and traditional
practices of people and countries.
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Geographical Indications
Any noun or adjective (need not
necessarily be a geographical name)
that designates geographical location
and would tend to be regarded by
buyers
as
descriptive
of
the
geographical location of origin of
goods.
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GIs and Developing Countries
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Instrument of Rural Development - promotion of products
having certain characteristics could be of considerable benefit
to the rural economy, in particular to less-favored or remote
areas, by improving the incomes of farmers and by retaining
the rural population in these areas (EC Regulation 2081/92) –
e.g. Italian Tuscan Olive Oil sold at premium ever since its
registration in 1998.
Differentiation of products can lead to:
– Increase in prices of the protected products
– Allows genuine producers to capture the rents, entry
barriers for “fakes”
More Antiguan Coffee and Darjeeling Tea sold than produced shows large market for genuine products.
Issue is whether the framework is appropriate for developing
countries.
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What is the GI extension issue?
o Article 22 deals with GIs at a general
level.
o Article 23 offers an additional level of
protection to wine and spirit GIs
o Additional level means that member
states are to protect against incorrect
usage of the relevant GI even without
the requirement of deception and
confusion
o Under Article 22 they are to protect
against misleading and incorrect
usage.
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To illustrate….
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Article 22
o The expression “Indian
Gruyere
cheese”
actionable
only
on
proving that:
 Gruyere
as a cheese
is well known in
India
 The
said expression
would be misleading
as to geographical
origin
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Article 23
o The expression “Indian
Champagne”
actionable:
 Merely
on
the
ground that such
usage is incorrect
(despite
the
delocalizing
factor
‘Indian’)
 Not
necessary to
prove that it is wellknown in India.
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What is so unfair about Art. 23?
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In the same provision dealing with one type of product,
there are two levels of protection.
Benefits to only wine producing countries – most of them
are developed countries
Most developing countries do not have wines as a major
revenue earning product – mostly their products are
handicrafts, rice, tea coffee, spices etc.
Their economies are heavily dependant on such products
Given the disparities, these products might find it difficult
to compete in international markets
Take the case of India which has a diversity in every area –
be it culture, traditions, food, art forms, crafts.
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Ground realities of Article 23
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Scope of Article 23 protection
o Wine and spirit GIs are protected against qualifiers such as
‘kind’, ‘type’, ‘style’, ‘imitation’ etc., as well as de-localizing
elements. There is no need to prove deception and confusion
o Hence, these GIs are spared from varying and subjective
interpretations of ‘unfair competition’ by various national
courts thereby leading to an equal and even legal status of the
GI.
o Consequently, the GI never becomes generic
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What is not under the purview of Article 23?
o Protects only identical GIs - Champagne v. Champagne
o Does not protect expressions deceptively similar to a GI -
Cognac v. Calognac
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Practical effects of protection under Article 23
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Wine and spirit GIs get an additional level of protection and
will never become generic once protected
Other GI owners have to invest huge resources to defend
their GIs in foreign markets
WTO members can also enter into negotiations for increased
level of protection of wine and spirit GIs with other members
without letting the exceptions in Article 24 affecting them
– For instance, if France wants to hold negotiations with US
for Champagne, US can’t use Art. 24.4 exception
– Whereas if India wants to hold negotiations with the US
for Darjeeling or Basmati misuse, US can use the 24.4 and
24.5 exceptions
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The protection offered to GIs under TRIPS amounts to having
double standards
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Indian GI Act Framework
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GIs can be granted to an individual, a family, a partnership,
a corporation, a voluntary association etc 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.
GIs protect and reward traditions while allowing for
products to evolve over time
GIs can be protected over long periods as long as the
collective tradition is maintained –
– Indian Act protects GIs for an initial period of 10 years,
which can be renewed after the expiry of the initial
period of protection for another 10 years
– GIs would cease to be on the register if not renewed six
months after the expiration of the last registration
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India’s famous GIs
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Banarasi silks
Paschmina shawls
Kashmir carpets
Basmati rice
Darjeeling tea
Assam tea
Bengal Cotton
Alphonso Mangoes
Pochampalli silk
Chanderi silk
Hyderabad pearls
Kerala Nendran bananas
Jaipur silver jewellery
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Nilgiri tea
Coorg coffee
Mysore sandal products
Mysore silk
Malabar pepper
Kancheepuram silks
Lonawala chikis (food stuff)
Nilgiri tea
Coir products from Kerala
Cardamom from Kerala
Aranmula mirrors
Nagpur oranges
Phulkari embroidery work
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Geographical Indication
Product
State
Date
of
Registration
Darjeeling Tea
Tea
West Bengal
29.10.04
Pochampally Ikat
Textile
Andhra Pradesh
31.12.04
Chanderi saree
Textile
Guna,
28.01.05
Madhya Pradesh
Kotpad Handloom fabric
Textile
Koraput, Orissa
02.06.05
Kota Doria
Textiles
Kota, Rajasthan
05.07.05
Kancheepuram silk
Textiles
Tamil Nadu
02.06.05
Bhavani Jamakkalam
Textile, carpets
Erode,Tamil Nadu
05.07.05
Mysore Agarbathi
Incense sticks
Mysore, Karnataka
02.06.05
Aranmula Kannadi
Metal Mirror
Kerala
19.09.05
Salem Fabric
Textiles
Tamil Nadu
19.09.05
Solapur Chaddar
Textiles
Maharashtra
19.09.05
Solapur Terry Towel
Textiles
Maharashtra
19.09.05
Mysore Silk
Textiles
Karnataka
28.11.05
Kullu Shawl
Textiles
Himachal Pradesh
12.12.05
Madurai Sungudi
Textiles
Tamil Nadu
12.12.05
Kangra Tea
Tea
Himachal Pradesh
12.12.05
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Geographical Indication
Product
State
Date
of
Registration
Coorg Orange
Horticulture
Product
Karnataka
30.01.2006
Mysore Betel Leaf
Horticulture
Product
Karnataka
30.01.2006
Nanjanagud Banana
Horticulture
Product
Karnataka
30.01.2006
Mysore Sandalwood Oil
Essential Oil
Karnataka
30.01.2006
Mysore Sandal Soap
Soap
Karnataka
30.01.2006
Bidriware
Handicrafts
Karnataka
30.01.2006
Channapatna Toys and Dolls
Handicrafts
Karnataka
30.01.2006
Coimbatore Wet Grinder
Wet Grinder
Tamil Nadu
30.01.2006
Mysore Rosewood Inlay
Handicrafts
Karnataka
30.01.2006
Kasuti Embroidery
Embroidery
(Textiles)
Karnataka
30.01.2006
Mysore Traditional Paintings
Paintings
Karnataka
30.01.2006
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Case of Basmati Rice
Bas – Aroma, Basmati – Aromatic Rice
 Production area – belt on Northern India
and adjacent part of Pakistan
 Unique
Characteristics – long grain
(increases substantially on cooking),
distinctive aroma and taste.
 Efforts to usurp the GI
 Case for joint registration – India and
Pakistan.
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GI Registration in SAARC
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Economic potential untapped
Products similarity - distinctive signs for distinct
products
Need to address territoriality - SAARC cooperation
needed
Need to protect at home – essential clause of
TRIPS Agreement - GI registration not in itself can
protect valuable reputation.
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Need to take this as a development issue
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Role of the Governments
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Thank You !!!
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