Session 98 summary
Whenever talking about Geographical Indication, Hetvi always starts with Intellectual Property (IP) Rights through which she likes to introduce GIs. On hearing Intellectual Property Rights, quite a few economic aspects of IP comes out in the open pretty clear. These economic aspects are most noticeable. One hears about brands, their marketing, their digital marketing, endless lawsuits, etc. when it comes to patents and trademarks one hears of big numbers, they would also hear quite a lot of technological advancement that are now linking up with IP Laws or the IP Laws linking up with a lot of technological advancements. Some of which are NFTs (Non Fundable Tokens), AI (Artificial Intelligence), Block Chains, Digital licensing, Modern Day Branding/Marketing etc. All these go to highlight more of the economic aspects of the intellectual property rights. There are various categories in which Intellectual Property Rights are available in, one of which is when someone invents or innovate a certain product, then the person can have a patent on it. When someone makes something literary, artistic or a creative work, then they are eligible to get a copyright over it. When someone has a brand and a certain logo that goes along with the brand and goes to show your brand to the entire world itself, then over here they are eligible to get a trademark. When someone is dealing with certain products and the outer features of the product itself, e.g. a bottle and the shape of the bottle and aesthetics of the bottle itself, which are very uniquely designed, then they are eligible to get a design right over the features of the product itself. Since a lot of economic aspects pop up when talking about intellectual Property Rights, there is however on side to itself which is not so glitzy, not so glamourous and definitely not giving out too many economic aspects as such and that is the Gamet/Universe of the traditional knowledge itself.
What does the term traditional knowledge means? Why do we call this knowledge as traditional? Is it because it is ancient or unusable?
Definitely not! The term ‘traditional’ used to describe this knowledge does not imply that the knowledge itself is old or technical but that is tradition based. So, it is traditional because it is created in a manner that reflects the traditions of the communities from which it originates. The term does not relate to the nature of the knowledge itself but to the way in which it has been conceived and preserved since generations and also disseminated through generations. The term has not been really defined clearly in any of the international instruments. In simple words the term itself comprises of tradition based literary, artistic or scientific works, then there can also be performances, inventions, discoveries, designs, marks, name, symbols etc. All of it is tradition based because it flows from a particular local or indigenous community. When talking about traditional knowledge we are not just talking about the medicinal uses of plants or herbs but we are also talking about all these various lists of things we have in which we can find traditional knowledge; there are – the governance method, architecture, designs, symbols, handicrafts, fabrics, materials, handlooms, jewellery, food recipes, medicinal methods, cosmetics, farming, resource management, hunting and fishing techniques. When going deeper into these things, one is able to link them to the traditional knowledge the person might have of for a couple of these items. In this sense traditional knowledge is really attached to our lives. One of the ways in which traditional knowledge is applicable is through geographical indications itself. Traditional knowledge under the Intellectual Property Rights system has not found any sort of protection where it talks about the International Legal System. However, there is a certain category in traditional knowledge itself which can be said Geographical Indications. Geographical Indications are a part of traditional knowledge which has found legal protection all across the world and especially in India. There are regions and their products which everyone is aware of e.g. Pashmina comes from Kashmir, from Darjeeling there is the Darjeeling tea, the famous oranges comes from Nagpur etc. though they may be far away from people but still they know these regions to be in India and the products that originate from these regions itself. If one looks around they can find themselves surrounded with so many such products- some are more famous and known to all, but each region, each state is home to lots of such products that people may be even unaware of, be it handicrafts, handlooms, the food (stuffs), dresses (traditional), traditional styles of wearing sarees, etc. This is where Geographical Indications really fall, i.e. where we import the entire idea of traditional knowledge through Geographical Indications.
What is geographical indications? How it evolved?
When talking about modern recognition of Geographical Indications which has just happened around 2 decades ago, that is comparatively pretty recent. However the evolution of GI is not. What GI does is to simply connect a place with a particular good and that connection is recognised as an indicator of that good coming from a certain place and that then indicates to the entire world that when talking about pashmina then anything that originates from Karnataka or Gujarat cannot be a pashmina, a pashmina is only something that is originating from Kashmir. That is the space in which GI lies. Such connections between places and goods have been around us since a long time but initially, when talking about it, the idea of protecting goods based on their place of origin itself found a recognition in European nations especially in France, which is the first country to have introduced a comprehensive system to protect a connection between places and goods. How has France done it? – France has this particular term called terroir, and France has led this terroir propaganda and terroir. The term itself means that there is a deep traditional connection to the land. The word terroir has been derived from the Latin term terra meaning land or earth and this term was coined in order to convey that certain wines and spirits have unique characteristics which are attributable to certain climatic conditions and that arise only in a particular geographical territory and that is how terroir was or the subject matter or the base over which we can see the entire subject matter of GIs have evolved as such. In its narrow sense terroir will only refer to any sort of physical environmental aspects or climatic aspects of a particular geographical territory in which a certain food stuff or wine etc. would be originating from. However, if expanded the scope of the term itself, one can include many other contexts such as even human community getting involved in the production of that particular product itself, the knowledge that the community that has evolved since/through generations and that knowledge that has been within that community and it has been passed on to those of several generations of the community. That can also then become a part of the expanded scope of the term terroir itself. There has been a lot of debate when it comes to this concept and accepting the concept by making it legally regulated anyhow in any sort of international forum. This is where the debate has been between two kinds of nations; the new world nations v/s the old world nations. Defenders of the Old World Nations, like India, have rigorously advocated the existence of GIs as they protect uniquely identifiable products possessing certain qualities that are attributable to the products place of origin itself. While on the other hand, there are the New World Nations that differ significantly in their viewpoint, arguing against this principle of terroir itself by putting out this argument that modernization has upgraded to such a level and it has upgraded human skills to that level to an extent that products from any place can be imitated or replicated at any other place. GI as the term itself is pretty much something that has newly entered the space. Before GIs there were other concepts such as Appellations of Origin, Protected Designation of Origin, Protected Geographical Indications etc. and even though in the European nations most of these various systems of the protection of product which originates from a particular place only, these concepts are still there in Europe and practised. However when talking about these concepts then they have mostly trickled down to this one concept which is very broad and basic concept that is known as geographical indications.
How GIs have evolved on the international front:
It was through this trade related aspects of IP Rights that the agreement (TRIPS Agreement) for the first time when any international instrument really talk about GIs and even went ahead to define Geographical Indications. So, Article 22-1 of the TRIPS agreement defines Geographical Indications as
Geographical Indications are, for the purpose of this Agreement, indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.
In simple words, geographic indications identify a good as originating in a particular territory. This territory has been narrowed down by the Article; either a territory or a region or a locality in that territory itself is where the product should originate from and a certain quality, reputation or other characteristics of the good itself should be essentially attributable to the geographical region. The knowledge of a product being from and originating from a community which has stayed in a particular region itself, which is why that knowledge is not really travelling to some other place. The knowledge/process cannot be done or replicated at any other place because that place has a certain climate which suites the entire process of creating, making the product and of course that knowledge has originated there within the community that makes the product, there are certain techniques that cannot be replicated anywhere else and that knowledge has stayed within one community in a particular region. This is where Geographical Indications come in to make us understand how a particular product, when it originates from a particular geographical origin only and there are certain characteristics which are essentially attributable to that place itself – to the territory itself, then this connection between the place and the product can be legitimised under the head of Geographical Indications.
What did India do about geographical indications? What did it do about so much of cultural heritage it has, and so many unique agricultural products that originate from various regions of India? How did our law come from?
In the 1990s, back then India realised that there were too many usurpations happening on the products itself and that not only had to do with the denomination of geographical origins itself but also surrounding genetic resources etc. So, back then there were popular cases of dilution of the Darjeeling tea itself, so any packet would say that it was a tea from Darjeeling and which is where this sort of cases diluted the image of Darjeeling tea and the brand itself of Darjeeling tea. Then there were patents given away on the plant neem in America and the patent was granted, there was also a patent which was granted on turmeric (haldi) and the various medicinal application of it, etc. with these cases India understood that they need to buck up and protect their products fiercely in the international market as well. With these patent related aspects and cases, with the help of research institutes and with the help of academicians as well as certain activists India successfully defended its rights over this sort of knowledge bank- the traditional knowledge bank and had these patents to be cancelled. This provided India with a lesson that there is an absence of any specific IP protection legislation or law where one would recognise the linkage between a product and a place itself. Since India is also a hub of duplication of products (e.g. sarees) therefore there is a lot of danger over traditional knowledge, the bank of it and all of this can bring the traditional knowledge to become extinct someday. So, India gladly fell into the “old world” category because they understood the importance of traditional knowledge that is there in these variety of products and that there is a need for certain protection for the products originating from a particular region itself in India, in not just the Indian market but also outside in the exports and the international market. With all of this in mind India created a legal framework and they enacted the Geographical Indications of Goods (Registrations and Protection) Act, 1999 along with the Geographical Indications of Goods (Registration and Protection) Rules, 2002. These generally come with rules as well as with the procedure when it comes to applying for registration of a particular good as a GI.
India’s preamble very clearly states that they are wanting to register products which originate from a particular place so they are wanting to legitimize that connection that a particular product has with a certain place and also post its registration there is the need to better protect these products. This is very clearly identified in the preamble through an Act and three objectives; 1st Protection of Producers, addition to their prosperity, 2nd Consumer protection from deception and 3rd Promotion of GI-tagged products in export market. India’s definition states: Section 2(e) “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 case may be”. – for the purpose of this clause, any name which is not the name of a country, region or locality of that country shall also be considered as the geographical indication if it relates to a specific geographical area and is used upon or in relation to particular goods originating from the country, region or locality. What it does is that even if the product has adopted a name which is not the name of the territory, region or locality, that name is also given protection by the law. That is how the Indian law is kept broad because they recognize the connection of the product and the place of origin even though the name of the product does not includes it. So, the Indian law gives a much broader protection to a wider range of products. There is a classification of goods in the article itself but it has been narrowed down, this classification of goods is not exhaustive list, it is an inclusive list, so there are agricultural goods, natural goods (e.g. Makarana Marble, natural good which is GI tagged), manufactured goods and goods of handicraft or of industry and includes food stuff.
Going to the term Indication, indication could be a name or it could also be any sort of geographical or figurative representation through which the particular product has been known since so many ages. The logo of the product itself can be registered as a GI so can be the name of the product, e.g. ‘Darjeeling tea’.
The article has also provided three important definitions of the producer, registered proprietor and authorised user. 1st the Producer: in terms of agricultural goods – producers can be anyone who produces the goods and also includes the person who processes or packages such goods, in terms of natural goods, the person who exploits the goods, when it comes to handicraft or industrial goods then the one who makes or manufactures the goods and any person who trades or deals in such production, exploitation, making or manufacturing would also be covered under this definition of producer by the GI law. Then there is the definition of the 2nd one i.e. Registered Proprietor: which says that any association of persons or producers or any organization that can apply for a particular GI and become the registered proprietor of the particular GI. 3rd is the Authorised User: it would be anyone who claims to be the user of the goods that are registered as GIs.
The registration Aspect
Once a person has a certain product which belongs to any of the categories of goods sale, have a certain agricultural products and it fulfils the requirements that are laid down in the definition of GI and then initiate the certain registration procedure along with other legal requirements for the registration itself. So, the application for registration can only be initiated by an association of person or producers or any organization or authority that is established by or under any law representing the interest of the producer concerned goods. What can happen when talking about registration of a particular good as a GI is that all the various people or individuals who are connected to the production of that good itself or the manufacturing of the good itself, when they come together and make an association then that association can go ahead and apply for registration of a particular product as a GI. However it can also happen that certain other producers can also come together through an association or an organization and can represent the fact that they represent the interest of the producers of the concerned goods and through that representation then they can also become eligible to file for a GI registration for a particular good. So, anyone apart from the known persons also can come forward and apply for the registration of a particular good as a GI however, they must show – the only requirement is that they must show that they are representing the interest of the producers. The law only wants to protect the producers/the local communities/the indigenous communities so the representation of these producers are very important. What happens next is that they have to go with certain documents and when they get to the registration of the application itself they must have a ‘statement of case’. In that statement of case they must bring around the entire story of the origination of the product itself. To keep it very simply the statement of case would have: what are the special characteristics, what are the quality parameters of a particular good, the description of the goods and its unique linkage with the geographical territory with that the goods originate from. A detailed description of all of this should be there where there are factors such as soil, water, climate conditions that also affect the particular good that originates from a particular place itself and these factors should be mentioned or described while applying. Method of production should be there in the statement of case – what is the method of production, what is the process involved, the raw materials, the tools, any sort of packaging speciality that maybe involved etc. then comes the uniqueness of the product – remember that we are protecting certain goods because of their unique characteristics that again can link them to a particular geographical territory and then certain proofs that you can attach. After statement of case one would need the ‘class of goods’ for which it is going to be applied for. There are a bunch of classes for which or over which the goods can be applied so if someone is dealing with a particular handloom and the handloom only weaves shawls or towels or just make blankets or just make floor rugs, then all such classes are available, the person can apply for whichever class is applicable to their good. ‘Particulars of appearance of GI’ i.e. there can be photographic evidences, the person has to attach a geographical map of the particular territory itself and that has to be a very detailed map. Then any sort of ‘Particulars of the producers who are to register as authorised users’ who have come together of the organisation, the documents relating to the origin of organization itself and all the particulars of the producers or people who are within that organization – all that has to come in the application.
Once the application has been filed, all the documents are put together, there is the consent of the entire organization itself then a person can go ahead and file the application with the registry which is at Chennai with a particular fee. Any sort of application would be examined first, the examination itself – within it if there is any sort of issue then the registrar of GIs can give back the application to make certain changes or modify the application in any manner that they may feel is required or sometimes it can also happen that the registrar accepts certain application even with certain faults but then the registrar also has powers to say that he can withdraw the acceptance of that particular application and then again the errors etc. should be simplified, the application itself has to be modified and made error free and has to be reapplied. Post this examination itself it goes for the advertisement of the application. So, whenever talking about GIs and trademarks, there will be the advertisement of the application to the public [Section 13 says: this application of yours is it has covered the examination part by the registrar of GIs]. It then goes to the advertisement of the application and this advertisement is open for a period of three months and within these three months any opposition that any person from the public might have against the application with certain legitimate reasons or as to why this product should not be registered as a GI, then they can objectify to it. Then there would be the hearing of the objections itself and both the parties would get an opportunity to represent themselves and their cases if at all the registrar feels that the person who has objected is weighing over here, then the application would be refused. However if there is no objection or if the application has an objection but the registrar feels that the applicants’ side weighs more and is truthful then it goes to acceptance itself and that is where the application then would be allowed and entered into the register of GIs as a registered GI and the applicants would receive a registration certificate. It does sounds simple but if the application does gets into legal mess then it might take months to get it resolved. If the application gets opposed or refused and then allowed then they can get the GI register to get the registration certificate itself. Going ahead, now that the person has received this right or this certificate of GIs, what happens next? The next thing is that the person gets to understand the duration of the registration itself which is for 10 years and post the 10 years it is eligible for a renewal and the renewal notice again comes from Chennai Registrar Office and the association which has applied for the GI has to take proactive steps and get the GI registration renewed.
What is an authorised user and why there is a need to get registration as an authorised user?
E.g. “you have been making a particular handloom product and that product itself has been recognized as a GI but you are not part of the association itself – it can happen that a government authority has come ahead/forward and applied for the registration of the GI. Of course you are not part of that government authority, which is why then you would need to register yourself as an authorised user. It can also happen that a group of certain producers from within the community have applied for the registration of the product as a GI that you are also using however you are not a part of those association which is the registered proprietor, then you can also apply for the registration as an authorised user and you can continue using the particular product which is now GI tagged and you can legally use the GI tag with all of your products itself”. The authorised user registration is also valid for 10 years.
What are the rights people/organization/community receive on such registration?
The registered proprietor or the authorised user in cases of any sort of infringement- infringement refers to ‘any sort of act which is leading to certain confusion among the public as to the geographical region of the goods itself’, (that would be an act of infringement of the handloom), one receives such rights as a registered proprietor or as an authorised user to obtain certain relief against any such cases of infringement and the authorised user can make exclusive use of a GI. So, the registration as an authorised user when using a product, or making or manufacturing a certain product which is GI registered is really imperative when it comes to making an exclusive use of the product itself. When does infringement happen? There is the registered GI and if any person who is not an authorised user uses certain goods and misleads people as to geographical origin of goods, that these goods originated from a geographical origin whereas that is not the case, then that can be counted as an act of infringement for the registered GI. Or/also when the GI is being used in any manner that constitutes unfair competition. Unfair competition- e.g. Mr. X produces a product and Y represents them, however Y is not the producer of the product, even that act itself is misleading for the public and that constitutes as an act of unfair competition because as all would agree on if there are two manufacturers or two sellers then both of them have equal rights to compete with each other and grow in the market. So, through any act if a person tries and takes down someone else’s competition by unfairly representing them, then that also acts as an infringement of GI. Then also there is a particular offense – False Application of GIs, for which one must know what is ‘Application of GIs’ itself. Application of GIs: After receiving the registration tag how should one use it? What happens on the ground is that the person gets a set of tags that they can use on their products, these set of tags are given to them on registration by Chennai itself and then the applicant has to distribute it among the people who are the authorised user and even if they have not registered as an authorised user but those tags have to be distribute so that the users can use that particular tag over the product that they are making and that product is linked to a particular geography itself. So, GIs can be applied to the goods themselves (stapled/glued on the product) or the tag is applied on the package even that is called application of the GIs and of course they can use a GI in any sort of sign, advertisement, branding, cataloguing, price list etc. of their particular organization if they are dealing with it. Even if the GI logo itself is woven or embossed on a particular product then that all of these acts constitute as applying the GIs. In most of the cases it is seen that the person/organization has received the GI and that’s that, the people/producers are unaware of how to apply these GIs themselves. What does falsely applying GI mean: making the registered GI or deceptively similar version of it without assent of AU/alters, adds to GI, makes application of a GI or deceptively similar GI to goods/package and/or uses package bearing a false GI. For these false applications there are certain penalties that are given already by the law; Penalty for falsifying or false application of GIs – Act punishable with imprisonment for not less than six months which may extend to three years + fine of not less than 50,000 which may extend to two lakh rupees, Penalty for selling goods to which GI is falsely applied – Same as previous one + enhanced penalty for subsequent conviction and Penalty for falsely representing a GI as registered – Punishable with imprisonment for a term which may extend to three years, or with fine, or with both.
About the Speaker
Hetvi Trivedi
Hetvi Trivedi Vyas is Senior Research Assistant, GUJCOST-GNLU Centre of Excellence in IPR, Gujarat National Law University, India. She researches on Intellectual Property Rights, with a special interest in advancing the understanding of the merger between law and society through traditional knowledge and geographical indications. She graduated from Gujarat National Law University and holds an LL.M. in Intellectual Property and Information Law from King’s College London. Hetvi is the co-author of Geographical Indications of India n Handlooms: Between Legal Right and Real Right. The book presents a comprehensive analysis of Geographical Indications (GIs) in the Indian context with particular reference to the handloom sector. It discusses themes such as the rationale of GI as IP (Intellectual Property); the domestic position on GIs; GI protection under various international instruments; handlooms from Gujarat and their GI journey; the efficacy of GIs; and GI structure for handlooms. The volume fills the gap between law and policies and recommends the implementation of an efficient legal system. It highlights the status of India n handlooms, a sector that represents the country’s cultural heritage and supports a range of livelihoods.
