Analysis of the Geographical Indications Act
Over the ongoing past, Geographical Indications have emerged as a critical type of Intellectual Property Rights issue in India. GI helps a network of maker producers to separate their items from contending items in the market and construct goodwill around their items, frequently fetching a quality price. From the customer‟s perspective, Geographical Indications go about as a flagging gadget, which causes them to recognize veritable quality-items and furthermore ensure them against fakes. Taking into account their business potential, sufficient legitimate protection of Geographical Indications becomes essential to preclude their misappropriation. Preceding to the passing of the Geographical Indications Act, there was no Act for the “protection of geographical indication” in India. So, India, as a member of the World Trade Organization, passed the “Geographical Indications of Goods (Registration and Protection) Act, 1999” which was enforced from 15 Sep 2003. Geographical Indications Act was established to register as well as protect goods relating to GIs.
- What is “geographical indications”
Sec 2(e) of the Act defines “‘geographical indications’ in relation to goods to mean: “An indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a county, or a region or locality in that territory, where a given quality, reputation or other characteristics of such goods is essentially attributable to its geographical origin and in the case where such goods are manufactured goods one of the activities of either the production or of processing or preparations of the goods concerned takes place in such territory, region or locality, as the case may be.”
- Who shall implement GI registration process?
A Geographical Indications registration in India is being implemented by the “Office of Controller General of Patents, Designs and Trademarks (CGPDT), Department for Promotion of Industry and Internal Trade, Ministry of Commerce and Industry, Government of India”. The CGPDT coordinates and regulates the working of the Geographical Indications Registry and any inquiries or complaints aligned with Geographical Indications registration can be made at “Intellectual Property Appellate Board (IPAB) at Chennai, India”.
- Geographical Indications registrations began in India from April 2004 moreover goods are registered in 4 classes
- Handicrafts and
- Manufactured goods
- Who can apply for registration of Geographical Indications (section 11)
- Any association of person
- Every associate of producers
- Any organisation or else any authority established under any law if represents the interest of producers of the concerned products.
May apply to the registrar in the prescribed format.
- Particulars of application (Sec11)
- An affidavit by the applicant that symbolize his interest.
- Three copies of the application are required.
- The application shall be duly signed by the applicant or his representative.
- The application must convoy the “statement of the case.”
- Exceptional features of the good as well as how its benchmark is maintained must be provided in detail in the application.
- Map of the region to which GI is related shall also be attached(3 certified copies)
- The personal details and address of the applicant should be provided in the application.
- Objection to registration (Sec14)
- Any person having any objection regarding the advertisement of an application for registration of GI may file an application of objection within 3 months from the date of advertisement and may be further extended for the period of 1 month if so requested before the completion of 3 months.
- The registrar will serve a copy of the application of objection to the applicant.
- Within the tenure of 2 months, the applicant has to send a “counter-statement”. If the applicant doesn’t act in accordance with the aforesaid the application shall be supposed to dispose of.
- The registrar will provide the copy of “counter statement” of the applicant to the person who has filed the application of objection.
- Both the parties have to present evidence for taking sides of their claims by means of “affidavit” as well as “supporting documents”.
- On the day fixed for hearing the objection may be “accepted” or “rejected”
- Period of protection (Sec 18)
Geographical Indications can be registered for the tenure of 10 years however it may be renewed again by filing application in prescribed form along with prescribed fees.
- Effects of registration
- Registration of Geographical Indications gives its proprietor as well as the authorised agent the sole right to utilize registered well. Further, registration offers the right to the institution of suit against encroachment and recuperation of damage for such infringement. (Sec21)
- Infringement can be caused by utilization of the GI on such goods which shows that such goods originate in such place other than its actual place which deceives the public about its geographical source or by means of “unfair trade competition”. (Sec 22)
- No person shall be allowed to institute any suit to avert or to recover damages for, the violation of an unregistered GI. However, if there should be an occurrence of non-registered GIs, an instance of passing-off can be instituted. (Sec20)
- Registration acts as a prima facie proof of the legitimacy of the indication and ownership. (Sec23)
- The registration can’t be “transferred, mortgaged, assigned or licensed, except in case of inheritance of the mark upon the death of an authorised user.” (Sec24)
- Effect of non-registration
For registration, the indications are required to fall within the extent of sec 2(1) (e) of the GI Act. Being in this way, it needs to likewise fulfil the requirements of sec 9, which exclude registration of Geographical Indications
“(a)the use of which would be likely to deceive or cause confusion; or
(b) the use of which would be contrary to any law for the time being in force; or
(c) which comprises or contains scandalous or obscene matter; or
(d) which comprise or contains any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India; or
(e) which would otherwise be disentitled to protection in a court; or
(f) which are determined to be generic names or indications 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; or
(g) 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 geographical indication.”
- Remedies for infringement of a Geographical Indications