Before the enactment of the Geographical Indications of Goods (Registration and protection) Act, 1999, there have been no specific statutory law governing geographical indications of goods in the country which could adequately protect the interests of producers of such goods. It was mostly left at the mercy of the common law, the English precedents or the branches of trademark law.
The law was primarily enacted to fulfil the requisites as mentioned under the Agreement on trade Related Aspects of Intellectual Property Rights (TRIPS Agreement), 1994. Unless a geographical indication is protected in the country of its origin, there is no obligation under the TRIPS Agreement to extend reciprocal protection. India, on the other hand would be required to extend protection to goods imported from other countries which provide for such protection. In view of these circumstances, a comprehensive legislation was enacted by the Parliament.
According to Section 2 (1) (e) of the GI Act, “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 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.
The above definition is more exhaustive as compared to the definition given in the TRIPS Agreement in Article 22.1 which says that “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.” The function of a geographical indication is that it points to a specific place or region of production that determines the characteristic qualities of the product that originates from there. It is important that the product derives is qualities and reputation from that place. Since those qualities depend on the geographical place of production, a specific “nexus” exists between the products and their original place of production. Some examples of Geographical Indications are “Darjeeling” for tea of Indian origin; “Kanjeevaram silk” denoting the product to be from the well-known Kanjeepuram in Southern India; “Benaras silk” indicating product of Indian origin; “Scotch whisky” indicating the product of Scottish origin etc.
PROHIBITION TO REGISTRATION
Section 9 of the GI Act, 1999 prohibits the registration of certain geographical indications. They are as follows:-
REGISTRATION FOR HOMONYMOUS GEOGRAPHICAL INDICATIONS
The law provides for the registration of homonymous (similar) geographical indications. After considering the practical conditions under which the homonymous indication will be differentiated from other homonymous indication and the need to ensure equitable treatment of the producers of the goods concerned, the Registrar may allow such registration upon being convinced that the same shall not cause a likelihood of confusion. The onus of establishing such difference lies on the applicant.
The law in this respect is generally formulated, keeping in mind Article 23 (3) of the TRIPS Agreement, which permits each member to “determine the practical conditions under which the homonymous indications in question will be differentiated from each other, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not misled.”
DURATION OF PROTECTION POST REGISTRATION
Section 18 of the GI Act, 1999, provides for a registration of geographical indication for a period of ten years. If there is any change in the proprietorship or if the application for renewal shows a different legal entity as compared to the registrant, it is necessary to show the continuity of the title from the registrant to the present owner, before the registration is renewed. The Registrar may accept an application for renewal from the managing trustee, executors, administrators and the like, when supported by court order or other evidence as is best alternative to act on behalf of t he present proprietor. The law pertaining to renewal of GI complies with Article 5 BIS of the Paris Convention.