Dhanus Micro Notes: Geographical Indications

Geographical Indications

A geographical indication is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. GI tag is issued to a specific geographical location (area, or country, or state).

Article 22.1 of the TRIPS Agreement defines geographical indications as …indications which identify a good as originating in the territory of a Member [of the World Trade Organization], 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.

This sign is used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. The qualities, characteristics or reputation of the product should be essentially due to the place of origin and thus there is a clear link between the product and its original place of production.

A Geographical Indication

· Is an indication or symbol to recognize the origin of a product.

· Is used to ensure good quality of agricultural, natural, or manufactured goods.

· The manufactured goods should be produced or processed or prepared in that territory for which the GI is issued.

For example –

ROQUEFORT CHEESE

Roquefort identifies a characteristic blue cheese made in a region in southwest France, around the municipality of Roquefort-sur- Soulzon.

The cheese is smooth and compact, with even blue veins, a very distinctive aroma, slight scent of mould and a fine, robust taste. It is made from raw, whole sheep’s milk from the Lacaune breed. Before it is pressed, the raw cheese is cultured with spores of Penicillium roqueforti. It is then aged for at least 14 days in natural caves in the foothills of the calcareous cliffs in the region. Aging continues outside the natural caves for at least 90 days from the date of its manufacture.

The characteristics of the milk obtained from indigenous breeds of sheep fed according to tradition, the characteristics of the caves in which the cheese is aged and the traditional know-how used in each step of the cheese making process give Roquefort its unique features and taste.

SWISS WATCHES

The appellation “SWISS” (or “Swiss Made”) affixed to a watch means that the watch was manufactured in Switzerland according to the tradition, knowhow and quality criteria of Swiss watchmaking. The geographical indication “Switzerland” or “Swiss” can be used on a watch if:

• its technical development is carried out in Switzerland

• its movement (the motor of the watch) is Swiss

• its movement is cased up in Switzerland

• the manufacturer carries out the final inspection in Switzerland

• at least 60% of the manufacturing cost are generated in Switzerland.

Geographical indications are usually obtained for agricultural products, foodstuffs, fermented drinks, handicrafts and industrial products. Geographical indications are generally applied to traditional products, produced by rural, marginal or indigenous communities over generations, that have gained a reputation on the local, national or international markets due to their specific unique qualities.

Appellations of origin are a special kind of GI. The term is used in the Paris Convention and defined in the Lisbon Agreement. It is a sub-type of geographical indication where quality, method, and reputation of a product originate from a strictly defined area specified in its intellectual property right registration. Article 2 of the Lisbon Agreement defines appellations of origin as “(1)… the geographical denomination of a country, region, or locality, which serves to designate a product originating therein, the quality or characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors.”

Producers can add value to their products through Geographical Indications by:

· communicating to consumers the product's characteristics, which derive from the climate, soil and other natural conditions in its particular geographical area

· promoting the conservation of local traditional production processes

· protecting and adding value to the cultural identity of local communities

A producer of goods can apply for registration of GI Tag. If GI tag is issued to him then he/she is called the authorised user of the GI tag. No other individual/area can use this tag. A protected geographical indication does not entitle the holder to prevent someone from making a product using the same techniques that is used in the standards for that indication. A geographical indication is a public property of a particular area or state. It shall not be assigned or transferred, pledged, mortgaged to others. If the authorised user of GI tag dies, his right transfers on his successor in title.

The GI tag issuing authority or the Registrar of Geographical Indications can remove the geographical indication from the register. The registration can also be cancelled on the application of an aggrieved person.

The registration of a geographical indication is valid only for a period of 10 years although it can be renewed from time to time for a further period of 10 years each.

There are three main ways to protect a geographical indication:

1. Sui generis systems (i.e. special regimes of protection);

2. Using collective or certification marks; and

3. Methods focusing on business practices, including administrative product approval schemes.

Geographical indications are protected in different countries and regional systems using a combination of two or more of the above said approaches.

(a) Sui generis systems of protection

GIs may be protected through a system that applies specifically and exclusively to them – a sui generis system of protection. Such systems establish a specific right, a sui generis right, over GIs. A sui generis protection system exists in the European Union with regard to GIs for wines and spirits, agricultural products and foodstuffs. India and Switzerland also have sui generis systems of protection.

Application for registration of a sui generis right should contain a

1. delimitation of the geographical area within which the product identified by the GI is produced

2. description of the product’s characteristics, quality or reputation

3. the standards of production

4. The link between the product’s characteristics and the geographical area

All these elements are contained in a document, called “the product specification”.

(b) Collective marks and certification marks

Protection for GIs registered as collective or certification marks is provided for under general trademark law. Some countries such as Australia, Canada, China and the United States of America protect GIs under trademark law. This collective mark or certification mark or guarantee mark differs from country to country.

Common feature of these types of marks

1. they may be used by more than one person, as long as the users comply with the regulations of use or standards established by the holder.

2. The mark be used only in connection with goods that have a particular geographical origin or specific characteristics.

Geographical indications may be protected through laws that focus on business practices, such as laws relating to the repression of unfair competition, consumer protection laws or laws on the labeling of products. These laws indirectly protect GIs as they prohibit certain acts that may involve their unauthorized use.

Protecting geographical indications abroad

The Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) is the forum from WIPO to discuss policy and legal issues relating to the international development of law and standards for geographical indications.

There are four main routes for protecting a GI abroad

1. By obtaining protection directly in the jurisdiction concerned

2. Through the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration - The Lisbon System provides a means of obtaining protection for appellations of origin in several countries. This can be done by filing one application with the International Bureau of WIPO, in one language, with one set of fees in one currency. The Lisbon Express database provide a general overview of international appellations of origin registered with WIPO.

3. Through the Madrid System for the International Registration of Marks (in which the GI concerned is protected in the country of origin as a collective or certification mark) - The Madrid system offers the possibility to protect a mark, including a collective mark or a certification or guarantee mark, in several countries, by filing one application (an international application) directly with the applicant’s national or regional trademark office (the office of origin) and obtaining one registration (international registration). International registrations for marks protected under the Madrid system can be searched through Madrid Monitor.

4. By concluding bilateral agreements between States or commercial partners - Two States or two trading partners may agree to protect each other’s GIs under a bilateral agreement.

The biennial International Symposium on Geographical Indications brings together government representatives with producers of GI-registered products, legal and other specialists, for an open exchange of views on various issues related to geographical indications.

Developing a GI scheme involves a number of important steps as follows:

a. Identifying the product’s characteristics and assessing whether it has potential in internal or external markets

b. Strengthening the cohesion of the group of producers and other operators involved, who will be the pillars of the gi scheme

c. Setting up standards, or a code of practice or regulations of use. The code of practice or regulations of use demarcates the product’s geographical region of production, and describes the production and processing methods. It may also describe the factors, natural and/or human, that are present in the region and contribute to the characteristics of the product;

d. Devising a mechanism to effectively attribute the right to use the indication to any producer and other operator concerned who produces the product within the established boundaries and according to agreed standards;

e. Establishing traceability, verification and control schemes in order to ensure continued quality and compliance with the code of practice or regulations of use;

f. Devising marketing strategies;

g. Obtaining legal protection for the gi and designing an enforcement strategy.

It may take several years to establish a complete GI scheme. The actual time taken to develop a complete GI scheme depend on the level of cohesion and organization of the group of producers and other operators concerned, the number and degree of conflicting interests, the number and level of obstacles to legal protection of the GI and the existence of institutional support.

The benefits of geographical indications

The geographical indications are gaining more and more interest in recent years. They are seen as useful tools in marketing strategies and public policies.

· Geographical indications convey information about the origin-bound characteristics of a product and therefore function as product differentiators on the market. Since brand recognition is an essential aspect of marketing, Geographical indications can be a key element in developing brands for quality-bound-to-origin products.

· Geographical indications act as a factor of rural development. GIs can contribute to development in rural areas. The entitlement to use a GI lies with regional producers. GI products contribute to local employment creation. Geographical indications bring value to a region in terms of jobs and higher income and also promote the region as a whole. In this regard, GIs contribute to the creation of a “regional brand.”

· Geographical indications act as a means to preserve traditional knowledge (TK) and traditional cultural expressions (TCEs). Products identified by a GI are often the result of traditional processes and knowledge by a community in a particular region from generation to generation. Some products may be the result of the traditional artistic heritage developedin a given region, known as “traditional cultural expressions” such as handicrafts, made using natural resources and having qualities derived from their geographical origin.

Their uses are

· It prevents duplication of the tagged products and so provides legal protection.

· Since the Tag is given to good quality products, it increases customer satisfaction and opens the international door for exporting.

· Increases the revenue of the producers and employment in the region.

Difference between a geographical indication and a trademark

Geographical indications and trademarks are distinctive signs used to distinguish goods or services in the marketplace. Both convey information about the origin of a good or service, and enable consumers to associate a particular quality with a good or service.

A. Trademarks identify and inform consumers about a good or service as originating from a particular company. Trademarks help consumers associate a good or service with a specific quality or reputation, based on information about the company responsible for producing or offering it.

Geographical indications identify a good as originating from a particular place. Based on its place of origin, consumers may associate a good with a particular quality, characteristic or reputation.

B. A trademark often consists of a fanciful or arbitrary sign that may be used by its owner. A trademark can be assigned or licensed to anyone, anywhere in the world, because it is linked to a specific company and not to a particular place.

The sign used to denote a GI usually corresponds to the name of the place of origin of the good, or to the name by which the good is known in that place. A GI may be used by all persons who, in the area of origin, produce the good according to specified standards. A GI cannot be assigned or licensed to someone outside that place or not belonging to the group of authorized producers.

Difference between a geographical indication and an appellation of origin

Appellations of origin are a special kind of GI. The term is used in the Paris Convention and defined in the Lisbon Agreement. It is a sub-type of geographical indication where quality, method, and reputation of a product originate from a strictly defined area specified in its intellectual property right registration.

The international legal framework for GI

1. The Paris Convention for the Protection of Industrial Property (1883)

The Paris Convention was the first international multilateral treaty to include provisions relating to indications of geographical origin.

2. The Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods (1891)

The Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods extends the protection afforded to false indications of source under the Paris Convention to deceptive indications of source as well. Deceptive indications may be misleading. This would be the case where, for example, there are homonymous place names in two different countries, but only one place is known for the production of a particular good.

3. The TRIPS Agreement (1994)

The TRIPS Agreement includes a section on the protection of GIs (Part II, Section 3).

Section 3 of the TRIPS Agreement sets forth a definition of a GI and contains a general obligation for WTO Members to provide protection against misleading use of a GI.

In India, GI tags are issued as per the Geographical Indications of Goods (Registration and Protection) Act, 1999. This tag is issued by the Geographical Indication Registry under the Department of Industry Promotion and Internal Trade, Ministry of Commerce and Industry.

Examples of few GI Tags in India:-

Geographical Indication	Goods	State
1. Darjeeling Tea	Agriculture	West Bengal
2. Aranmulla Kannadi	Handicraft	Kerala
3. Pochampalli Ikat	Handicraft	Telangana
4. Salem Fabric	Handicraft	Tamil Nadu
5. Chnaderi Sarees	Handicraft	Madhya Pradesh
6. Solapur Chaddar	Handicraft	Maharashtra
7. Solapur Terry Towel	Handicraft	Maharashtra
8. Kotpad Handloom fabric	Handicraft	Odisha
9. Mysore Silk	Handicraft	Karnataka