GEOGRAPHICAL INDICATIONS

Geographical Indication (GI) has become one of the most debated issues of IPR in the recent past. TRIPS defines GI as any indication that identifies a product as originating from a particular place, where a given quality, reputation or other characteristics of the product are essentially attributable to its geographical origin. A GI is a specific attribution of a product that has a specific geographical origin and possesses characteristics that correspond to that origin. A GI gives exclusive right to a region to use a name for a product with certain characteristics that corresponds to their location. If a GI is registered, it prohibits all third parties to use the GI in such a manner that might imply that the goods originate from that region.

For example, Darjeeling Tea (Word) vide Geographical Indication Registration No. 1 or vide Geographical Indication Registration No. 2 are registered Geographical Indications. Hence, Tea Board, Registered Proprietor of Darjeeling Tea can prohibit any third party from using the term "Darjeeling" for tea that does not grow in their gardens or is not produced according to the standards set out in the code of practice for the registered Geographical Indication.

The Geographical Indications of Goods

The Geographical Indications of Goods (Registration and Protection) Act, 1999 protect the GI’s in India. Registration of GI is not compulsory in India. If registered, it will afford better legal protection to facilitate an action for infringement.

Who can apply for a GI?

Any association of persons/producers/organization or authority established by or under any law for the time being in force representing the interests of the producers of the concerned goods, can apply for a GI protection.

TERM OF PROTECTION

The term of a GI protection is 10 years and is renewable from time to time.

ADVANTAGES OF GI

Geographical Indications have certain advantages. It relies on prima facie evidence instead of trying to get all the evidence in a passing off action. Also, registration is not mandatory to get protection-passing off remedy is always available.

COMPONENTS OF APPLICATION FOR GI PROTECTION

An application for protection of GI should have the following components mentioned by the applicant:

• Geographical area
• Class of goods
• Specification of goods indicating the unique characteristics, quality, etc.
• Method of Production
• Geographical linkage to the goods (includes human factors and environmental factors)
• Uniqueness of the product

WHAT GIs ARE EXCLUDED FROM REGISTRATION

Section 9 of the GI Act mentions what type of geographical indications will not be registered. Geographical indications whose:

• Use likely to deceive or cause confusion
• Use contrary to any law for the time being in force
• Comprises or contains scandalous or obscene matter
• Comprises or contains any matter likely to hurt the religious susceptibility of any class or section of the citizens of India
• Which would otherwise be disentitled to protection in a court
• Which are determined to be generic names or indication 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
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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 GI.

INFRINGEMENT

Section 22 of the GI Act talks about infringement. A person, who is not an authorized user, infringes a registered GI when:

• a) S/he uses such GI - by any means in the designation or presentation of goods – indicates or suggests that such goods originate in a geographical area other than the true place of origin of such goods in a manner which misleads the persons as to be geographical origin of such goods.
• b) S/he uses any GI in such manner that constitutes an act of unfair competition including passing off in respect of the registered GI.
• c) Uses another GI to the goods which, although literally true 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 GI relates.

REMEDIES

The following remedies are available in case of infringement:

Civil remedies:

• Injunction – temporary and permanent
• Damages
• Account of profits but this is more difficult especially since the defendant may not keep proper accounts.

Criminal remedies:

• .1. Minimum imprisonment is 6 months, maximum 3 years. Minimum fine is Rs.50,000 and maximum is Rs.6lakhs.