1 geographical indications an indian perspective sanjay kumar 3 rd may 2006
TRANSCRIPT
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Geographical Indications Geographical Indications
An Indian PerspectiveAn Indian Perspective
Sanjay KumarSanjay Kumar33rdrd May 2006 May 2006
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Scope of PresentationScope of Presentation
Geographical Indications – IntroductionGeographical Indications – Introduction
Current International debate on Current International debate on Geographical IndicationsGeographical Indications
Overview of the Indian GI registration Overview of the Indian GI registration systemsystem
Geographical Indications as a tool for Geographical Indications as a tool for developing countriesdeveloping countries
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Intellectual PropertyIntellectual Property
Outcome of one’s intellectual effortsOutcome of one’s intellectual efforts
Different from other forms of propertyDifferent from other forms of property
Incentive to create – rewardIncentive to create – reward
Advantage in Competition - creates Monopoly rightAdvantage in Competition - creates Monopoly right
Sources of IP LawSources of IP Law
– Article 38 – ICJArticle 38 – ICJ
– Treaty LawTreaty Law
– Customary International LawCustomary International Law
– Precedents and DoctrinesPrecedents and Doctrines
– General principles of lawGeneral principles of law
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TRIPS Agreement TRIPS Agreement
Copyright and related rightsCopyright and related rights Trade marksTrade marks Geographical Indications (GIs)Geographical Indications (GIs) Industrial designsIndustrial designs PatentsPatents Layout designs of integrated circuitsLayout designs of integrated circuits Protection of undisclosed informationProtection of undisclosed information Control of anti-competitive practices in Control of anti-competitive practices in
contractual licencescontractual licences
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GIs – the conceptGIs – the concept
GIs are essentially the GIs are essentially the DNA of NatureDNA of Nature impregnated into the Mother Earth – impregnated into the Mother Earth – difficult to clone and beyond difficult to clone and beyond scientific calculation. scientific calculation.
GIs are about culture, geography, GIs are about culture, geography, traditions, heritage and traditional traditions, heritage and traditional practices of people and countries.practices of people and countries.
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Geographical IndicationsGeographical Indications
Any noun or adjective (need not Any noun or adjective (need not necessarily be a geographical name) necessarily be a geographical name) that designates geographical location that designates geographical location and would tend to be regarded by and would tend to be regarded by buyers as descriptive of the buyers as descriptive of the geographical location of origin of geographical location of origin of goods.goods.
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GIs and Developing Countries GIs and Developing Countries 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?What is the GI extension issue?
o Article 22 deals with GIs at a general Article 22 deals with GIs at a general level.level.
o Article 23 offers an additional level of Article 23 offers an additional level of protection to wine and spirit GIsprotection to wine and spirit GIs
o Additional level means that member Additional level means that member states are to protect against states are to protect against incorrect incorrect usageusage of the relevant GI even without the of the relevant GI even without the requirement of deception and confusionrequirement of deception and confusion
o Under Article 22 they are to protect Under Article 22 they are to protect against against misleading and incorrect misleading and incorrect usageusage..
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To illustrate….To illustrate….
Article 22Article 22
o The expression “Indian The expression “Indian Gruyere cheese” Gruyere cheese” actionable only on actionable only on proving that:proving that:
Gruyere as a cheese Gruyere as a cheese is well known in is well known in IndiaIndia
The said expression The said expression would be misleading would be misleading as to geographical as to geographical originorigin
Article 23Article 23o The expression “Indian The expression “Indian
Champagne” Champagne” actionable:actionable:
Merely on the Merely on the ground that such ground that such usage is incorrect usage is incorrect (despite the de-(despite the de-localizing factor localizing factor ‘Indian’)‘Indian’)
Not necessary to Not necessary to prove that it is well-prove that it is well-known in India.known in India.
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What is so unfair about Art. 23?What is so unfair about Art. 23?
In the same provision dealing with one type of product, In the same provision dealing with one type of product, there are two levels of protection.there are two levels of protection.
Benefits to only wine producing countries – most of them Benefits to only wine producing countries – most of them are developed countriesare developed countries
Most developing countries do not have wines as a major Most developing countries do not have wines as a major revenue earning product – mostly their products are revenue earning product – mostly their products are handicrafts, rice, tea coffee, spices etc. handicrafts, rice, tea coffee, spices etc.
Their economies are heavily dependant on such products Their economies are heavily dependant on such products
Given the disparities, these products might find it difficult to Given the disparities, these products might find it difficult to compete in international markets compete in international markets
Take the case of India which has a diversity in every area – Take the case of India which has a diversity in every area – be it culture, traditions, food, art forms, crafts.be it culture, traditions, food, art forms, crafts.
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Ground realities of Article 23Ground realities of Article 23 Scope of Article 23 protectionScope of Article 23 protection
o Wine and spirit GIs are protected against qualifiers such as Wine and spirit GIs are protected against qualifiers such as ‘kind’, ‘type’, ‘style’, ‘imitation’ etc., as well as de-localizing ‘kind’, ‘type’, ‘style’, ‘imitation’ etc., as well as de-localizing elements. There is no need to prove deception and confusionelements. There is no need to prove deception and confusion
o Hence, these GIs are spared from varying and subjective Hence, these GIs are spared from varying and subjective interpretations of ‘unfair competition’ by various national interpretations of ‘unfair competition’ by various national courts thereby leading to an equal and even legal status of the courts thereby leading to an equal and even legal status of the GI.GI.
o Consequently, the GI never becomes genericConsequently, the GI never becomes generic
What is not under the purview of Article 23?What is not under the purview of Article 23?o Protects only identical GIs - Champagne v. ChampagneProtects only identical GIs - Champagne v. Champagne
o Does not protect expressions deceptively similar to a GI - Does not protect expressions deceptively similar to a GI -
Cognac v. CalognacCognac v. Calognac
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Practical effects of protection under Article 23Practical effects of protection under Article 23
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
The protection offered to GIs under TRIPS amounts to having double standards
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Indian GI Act FrameworkIndian GI Act Framework
GIs can be granted to an individual, a family, a partnership, GIs can be granted to an individual, a family, a partnership, a corporation, a voluntary association etc a corporation, a voluntary association etc or any or any organization or authority established by or under any law organization or authority established by or under any law for the time being in force representing the interest of the for the time being in force representing the interest of the producers of the concerned goods.producers of the concerned goods.
GIs protect and reward traditions while allowing for GIs protect and reward traditions while allowing for products to evolve over timeproducts to evolve over time
GIs can be protected over long periods as long as the GIs can be protected over long periods as long as the collective tradition is maintained – collective tradition is maintained –
– Indian Act protects GIs for an initial period of 10 years, Indian Act protects GIs for an initial period of 10 years, which can be renewed after the expiry of the initial which can be renewed after the expiry of the initial period of protection for another 10 years period of protection for another 10 years
– GIs would cease to be on the register if not renewed six GIs would cease to be on the register if not renewed six months after the expiration of the last registrationmonths after the expiration of the last registration
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India’s famous GIsIndia’s famous GIs
BanarasiBanarasi silks silks PaschminaPaschmina shawls shawls KashmirKashmir carpets carpets BasmatiBasmati rice rice DarjeelingDarjeeling tea tea AssamAssam tea tea BengalBengal Cotton Cotton AlphonsoAlphonso Mangoes Mangoes PochampalliPochampalli silk silk ChanderiChanderi silk silk Hyderabad pearlsHyderabad pearls Kerala Nendran bananasKerala Nendran bananas Jaipur silver jewelleryJaipur silver jewellery
Nilgiri Nilgiri teatea CoorgCoorg coffee coffee MysoreMysore sandal products sandal products MysoreMysore silk silk MalabarMalabar pepper pepper KancheepuramKancheepuram silks silks Lonawala chikis Lonawala chikis (food (food
stuff)stuff) NilgiriNilgiri tea tea Coir products from Coir products from KeralaKerala Cardamom from Cardamom from KeralaKerala AranmulaAranmula mirrors mirrors Nagpur orangesNagpur oranges Phulkari embroidery workPhulkari embroidery work
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Geographical Indication
Product
State
Dateof
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
Dateof
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 RiceCase of Basmati Rice
Bas – Bas – Aroma, Basmati – Aromatic RiceAroma, Basmati – Aromatic Rice Production area – belt on Northern India Production area – belt on Northern India
and adjacent part of Pakistanand adjacent part of Pakistan Unique Characteristics – long grain Unique Characteristics – long grain
(increases substantially on cooking), (increases substantially on cooking), distinctive aroma and taste.distinctive aroma and taste.
Efforts to usurp the GI Efforts to usurp the GI Case for joint registration – India and Case for joint registration – India and
Pakistan.Pakistan.
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GI Registration in SAARCGI Registration in SAARC
Economic potential untappedEconomic potential untapped
Products similarity - distinctive signs for distinct Products similarity - distinctive signs for distinct productsproducts
Need to address territoriality - SAARC cooperation Need to address territoriality - SAARC cooperation needed needed
Need to protect at home – essential clause of Need to protect at home – essential clause of TRIPS Agreement - GI registration not in itself can TRIPS Agreement - GI registration not in itself can protect valuable reputation.protect valuable reputation.
Need to take this as a development issueNeed to take this as a development issue
Role of the GovernmentsRole of the Governments
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Thank You !!!Thank You !!!