Geographical Indication in Developing Countries


Geographical Indications are indications that identify a good as originating in the territory of a Party, 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. Any sign or combination of signs, in any form whatsoever, shall be eligible to be a geographical indication. Napa Valley chardonnay wine and Champagne sparkling wine are the good example of geographical indications.

By
Jasper Vikas George*

The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised (Declaration on the Right to development, 1986). This minimum requirement of living with dignity is defined differently every where in this world. The North South dialogue and the engulfing gap with developing countries have created an overambitious plan of one world. The conditions imposed on developing countries in the name of minimum standards are very high. The minimum standards set by the TRIPS Agreement, is too high for the developing countries to adopt. The integral yoga of law and society is fundamental to orderly human progress. IPR laws were enacted not only to provide protection to the IPR owners but its purpose is also to accommodate the rights of the society as a whole.

Geographical Indications and Developing Countries
India is developing country. And maximum of developing countries like India are primarily agricultural in their trade. The market friendly regime of developing countries is still in the hands of the farmers. In developed countries like U.S.A, Canada, U.K., etc., the agricultural industry is running by the multi corporate companies. This made the difference between the developed country and the developing country.
Specific geographical indication protects a product produced by a number of different producers (concept similar to "community"), based on traditional formulas or processes, which are transmitted from one generation to the other. It also corresponds to products which normally have a relationship with the land, local resources and the environment . Traditional knowledge is linked to a specific place or zone which confers the products of those places certain characteristics or reputation because of its geographical origin.

The protection of societal interests from the unfair IPR regime and the redressal of their grievances in respect of misappropriation of ‘traditional knowledge’ seems a dream of the future. The protection of ‘biodiversity’, from the bio pirates seems impossible under the traditional norms of the criminal law. For fast changing world of technology ‘biopiracy’ is an easy thing to do. These biopirates are illegally extracting the ‘traditional knowledge’ of the ‘indigenous people’, which later left them with nothing. They are forced to but their own property. Similarly to previous intellectual property conventions, the TRIPS Agreement is a minimum standards agreement, it lets WTO Members to provide more wide-ranging protection for intellectual property rights than set out in the Agreement. Most favoured nation and national treatment are the principles which led the way for the uniform protection of IPRs.
The access by biotechnology companies to the genetic resources of developing countries is modern feature of biotechnological patenting. The role which a geographical indications law might play is illustrated by the recent dispute between the Indian basmati-rice marketing authorities and a U.S. corporation which had developed a strain of rice from basmati genetic material. The U.S. corporation sought to market this rice under the brands “Texmati”, “Kasmati”, and “jasmati” .


Geographical Indications and Traditional Knowledge

It has been suggested that Geographical indications Act will be helpful in protecting the traditional knowledge of the indigenous people. The development of plant varieties would not be in the picture unless these indigenous people were there. The important linkage between geographical indications and developing countries interest, corresponds to the protection of traditional knowledge. Probably the only existing category of intellectual property rights that may be directly applied to the protection of traditional knowledge is that of geographical indications.

Over the years, indigenous people and local farmers in various countries have developed their own knowledge for obtaining food and medicines from the land. This knowledge is evolved outside the formal legal structure of the intellectual property protection system. Considering that many of these products produced according to traditional and ancient methods have a given quality, reputation or other characteristic essentially attributable to their geographical origin, protection through a geographical indication could be applied to them .

Paris Convention for the Protection of Industrial Property (1883)

The birth of this “appellations of origin” type of intellectual property provision has been attributed to the international cooperation in this field which would be beneficial domestically to countries. This sentiment crystallized in article 10 of the Paris Convention for the Protection of Intellectual Property. London Conference on 1934 dealt with the possibility of amending the Paris Convention’s provisions in order to remedy the deficiencies of Article 10. Finally in Lisbon, 1958, paragraph 3(3) 10 bis was added which is directed at unfair competition. This provision, as proposed, dealt with misleading indications of origin but, again, one vote prevented the scope of the paragraph from extending that far. This amendment eliminated the need for both a false designation of origin to be coupled with a fictitious name in order to trigger the protection provisions of the Article.

TRIPS

According to the Article 22 (1)of the TRIPS agreement, “Geographical indications are, for the purposes 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. Article 22 (2) provides legal means to be adopted by the member states in respect of geographical indications: -
(a) The use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good;
(b) Any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967).

Article 22 (3) puts a member under the obligation to refuse or invalidate the registration of a trademark which contains or consists of a geographical indication with respect to goods not originating in the territory indicated, if use of the indication in the trademark for such goods in that Member is of such a nature as to mislead the public as to the true place of origin. According to Article 22 (4), “The protection under paragraphs 1, 2 and 3 shall be applicable against a geographical indication which, although literally true as to the territory, region or locality in which the goods originate, falsely represents to the public that the goods originate in another territory”. Article 23 provides additional protection for Geographical Indications for Wines and Spirits.

India and Geographical Indications Act

An effective protection for GIs was of considerable importance for a country like India, which was richly endowed with natural and agricultural products and which already had in its possession renowned geographical names such as 'Darjeeling'(tea), 'Alphonso' (mango), 'Basmati' (rice), etc., there was no separate legislation on GIs until the enactment of 'The Geographical Indications of Goods (Registration and Protection) Act, 1999' (henceforth the GI Act) .

The tea from Kenya, Sri Lanka, have often been passed off around the world as ‘Darjeeling tea’, which originally denotes the fine aromatic produce of the high-altitude areas of North-Bengal, from where it derives the name. Corporations in France and the US have been producing rice based on ‘Basmati’ varieties in those countries, and registering trademarks that refer to ‘Basmati’, thereby seeking to gain from this renowned geographical name. The US-patent on ‘Basmati Rice Lines and Grains’ granted to Texas based Rice Tec Inc, which triggered a lot of controversy in the recent past, is a glaring example of wrongful exploitation of a renowned GI from India. So on and so forth .
The ‘Geographical Indications Registry’ is established at Chennai with all India jurisdiction. GI is registered by any person claiming to be the producer of the good designated by the registered GI can file an application for registration as an authorised user. The GI Act is to be administered by the Controller General of Patents, Designs and Trade Marks- who is the Registrar of Geographical Indications. Not only this, number of NGOs are also working for the upliftment of the farmers and spreading awareness among the public about the better use of geographical indications.

By controlling Bio piracy we can help our nation in building better platform for the GI to develop. The vigilance is the key.

Conclusion and submission

The India and TRIPS agreement has both merits and demerits. India can in a proper way encash the opportunity of utilising the maximum out of Geographical Indications. India is enrich in Biodiversity. we have everything with us. The Biodiversity of Mountain of Himalyas and the Ganga Terrain. We must as soon as possible built an proper infrastructure to claim protection of maximum of bioderversity products such as Tea, Jute products, Saaris of Madurai, and number of other un countable things.

The main intellectual property areas covered by the TRIPS Agreement are:

1. copyrights and related rights;
2. trademarks;
3. geographical indications;
4. industrial designs;
5. patents;
6. The lay-out design of integrated circuits; and
undisclosed information (including trade secrets).

The TRIPS agreement had provided proper minimum standards to rely upon. The GDP of India is still covers a lot the agricultural sector. The Proper use of geographical indications can not only enrich the country as a whole but it will also make the survival of the farmers easy.

The evolution of the law relating to the Geographical Indications is not new to us. The strength lies is in commitment to do our best under the unbrella TRIPS and the guidance of Geographical Indications Act.


(C) Copyright reserved with the author


Notes


*Jasper Vikas George, Advocate, Delhi High Court, Pursung LL.M, Faculty of Law, University of Delhi,

1. Downes David and Laird Sarah A., "Innovative mechanism for sharing benefits for biodiversity and related knowledge: Case study on geographical indications and trademarks", document prepared for the BIOTRADE initiative of UNCTAD.

2. Lal S., “India and Pakistan: Geographical Indications – The basmati Issue, paper delivered at the International trademark Association, Annual meeting, Seattle, May 1999

3. Repetto R. Silva and Cavalcanti M., "Module 3: Provisions of the TRIPS Agreement Relevant to Agriculture (Part I)", Website:
 http://www.fao.org/ur/manual/IV-03e.htm.

4. “The geographical name of a country, region or locality which serves to designate a product originating therein the quality and characteristics of which are due exclusively or essentially to the geographical environment, including natural or human factors.”

4. Article 10bis Paris Convention:
(1) The countries of the Union are bound to assure to nationals of such countries effective protection against unfair competition.
(2) Any act of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition.
(3) The following in particular shall be prohibited:
(i) All acts of such a nature as to create confusion by any means whatever with the establishment, the goods, or the industrial or commercial activities, of a competitor
(ii) false allegations in the course of trade of such a nature as to discredit the establishment, the goods, or the industrial or commercial activities, of a competitor;(iii) indications or allegations the use of which in the course of trade is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity, of the goods.
(iii) indications or allegations the use of which in the course of trade is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity, of the goods.

6. Das Kasturi, “Geographical Indications in Jeopardy”, India Together, April 2004

7. Ibid.

8. Article – 42 Members shall make available to right holders civil judicial procedures concerning the enforcement of any intellectual property right covered by this Agreement. Defendants shall have the right to written notice which is timely and contains sufficient detail, including the basis of the claims. Parties shall be allowed to be represented by independent legal counsel, and procedures shall not impose overly burdensome requirements concerning mandatory personal appearances. All parties to such procedures shall be duly entitled to substantiate their claims and to present all relevant evidence. The procedure shall provide a means to identify and protect confidential information, unless this would be contrary to existing constitutional requirements.”