Basics of Geographical Indications

 

Basics of Geographical Indications

Meaning

 

A Geographical Indication is an indication that is used to identify agricultural, natural or manufactured goods originating from a definite geographical territory having a special quality or reputation or other characteristics. The manufactured goods should be produced or processed or prepared in that territory. Geographical Indications encompasses what is known as Appellation of Origin. An Appellation of Origin is a special kind of Geographical Indication used on products that have a specific quality that is exclusively or essentially due to the geographical environment in which the products are produced.

 

Illustrations

 

Geographical Indications (GIs) can be best explained by referring to some of the world famous GIs (Indian examples) like the Basmati Rice, Kanchipuram Silk, Darjeeling Tea, Alphanso Mango, Nagpur Orange, Kolhapuri Chappal and Bikaneri Bhujia. The well-known GIs include the Scotch Whiskey, Chinese Silk and the Venetian Glass. IDAHO for potatoes, WASHINGTON STATE for apples and FLORIDA for oranges are some of the Geographical Indications of the United States.

 

Significance of GI’s in Modern Economies

 

There are multitudinous reasons that strongly mandate the protection of GI’s. In modern free trade economies, GIs have enormous economic value as the consumers are wiling to pay high prices for goods bearing a particular quality. It is important to protect the consumers from spurious products and producers from unfair competition. Besides the commercial aspect, the GIs also protect the usurpation of the national heritage of a country by associating a product world wide with a particular country. As the quality of product is not only attributable to the climate, topography but also to the know-how of the producers of the region, the GIs are also important tools for protecting the traditional knowledge of the producers.

 

Distinction Between Geographical Indications and Trademark

 

Geographical indications have been protected under the Trademark law in many national jurisdictions. Even though both the GIs and Trademark are source identifiers, there are many differences between the two. Whereas Trademark identifies the products with the manufacturer, the GI identify products with the place of production or origin. Another important difference is that the GIs are the community rights whereas the trademark is individual right. As regards the use, the Trademark can assigned as well as licensed, but a Geographical indication cannot be assigned, transmitted or licensed.

 

Geographical Indications Registration System in India

 

Protection of Geographical Indications in India is governed by the legislation namely The Geographical Indications of Goods (Registration & Protection) Act, 1999, which seeks to provide for registration and better protection of geographical indications relating to goods in India. This Act also provides for setting up a Geographical Indications Registry for the purposes of registration of GIs in India.

 

Who Is Entitled To Apply?

 

Any association of persons, producers, organization or authority established by or under the law can apply for registration of GIs. The applicant must represent the interest of the producers. Producers are persons dealing with the following three categories of goods:

a. Agricultural Goods includes the production, processing, trading or dealing;

b. Natural Goods includes exploiting, trading or dealing; and

c. Handicrafts or Industrial goods include making, manufacturing, trading or dealing

 

How to register

 

a. Prescribed Form

 

·         An application for registration of a GI for a specification of goods included in any one class; or ·         an application to register a GI for a specification of goods included in any class from a convention country;or ·         a single application for the registration of a GI for different classes of goods from a convention country;or ·         a single application for the registration of a geographical indication for different classes of goods

shall be made in Form GI-1.

 

The Application document

 

The application must be filed at the Office of the GI Registry located in Chennai. The application must conform to the various requirements and criteria prescribed under the GI Rules. The Applicant must furnish the following information/documents with the GI Registry:

 

1.   Geographical Signification of the Indication vis a vis the goods thus explaining how the indication serves to designate the goods as a Geographical Indication; 2.   Class of goods; 3.   Geographical Area; 4.   Details of the appearance; 5.   Particulars of the producers; 6.   Affidavit deposing the Applicant’s right to become the Registrant;

 

Geographical Indications Filing Requirements in India

 

An application for registration of a Geographical Indication in India requires the following particulars:

 

The Details of the Applicant

 

·         Name ·         Address ·         List of association of persons/producers/organisation/authority ·         Citizenship ·         Legal status and country of incorporation

 

Specimen of the Geographical Indication

 

·         Six (6) printed specimen of the geographical indication, if the Mark is in Black & White; ·         Ten (10) printed specimen of the geographical indication, if the GI is in Color ·         Where an application for registration of a geographical indication consists of shape of goods or its packaging, the reproduction furnished shall consist of at least three different views of the geographical indication and a description by word of geographical indication

 

Specification of Goods or Services

 

The total number of characters in the specification of goods or services if exceeds 500, additional fee must be paid.

 

User

 

The law requires the applicant to specify whether the geographical indication is in use in India. If in use, then the date of use is required to be specified.

 

Priority details

 

We require the following to claim priority:

 

·         Priority application number ·         Priority country ·         Priority date ·         Certified priority document (may be submitted later within 2 months from the date of filing in India)

 

Power of Attorney

 

A Power of Attorney is required to be filed with the application for registration, if it is being filed through an Agent. A Power of Attorney needs to be stamped appropriately. It is also possible to file the Power of Attorney subsequent to the filing of the Application.

 

Geographical Indications Opposition Procedure

 

Any person can oppose the registration of geographical indication by giving a notice in writing of opposition to the registrar within a period of three months from the date of advertisement of the application in the Journal.

 

Notice of Opposition

 

The Notice of Opposition has to be given in triplicate setting out the grounds of opposition. Where notice is given with respect to a single application, it shall bear the fee with respect to each class of the application. Where opposition is made with respect to a particular class for classes, the application shall not proceed for registration unless the applicant makes request for division of the application. In respect of the remaining classes, the application shall proceed for registration.

 

Verification of the Notice

 

Verification of the notice by the opponent is a must. The opponent is required to state as to what is verified by his knowledge and what is verified upon information received and believed to be true. Such a verification shall be signed by the opponent and shall also contain the date and place of verification.

 

Counterstatement

 

The registrar shall serve a copy of the notice to the applicant. The applicant has to send a counter statement to the registrar within two months from the date of receipt, stating the grounds that he relies on for making the application. If the applicant does not do so, he shall be deemed to have abandoned his application. Like the notice of opposition, the counterstatement also has to be made in triplicate and has to be verified by the applicant. The Registrar shall serve a copy of the counterstatement to the opponent within a period of two months from the date of receipt of the counterstatement.

 

Evidence

 

Within a period of two months (extendible to three months) from the date of receipt of the counterstatement, the opponent shall submit the evidence in support of his application. Alternatively, he can intimate the registrar in writing that he does not intend to adduce any evidence but only desires to rely on the facts alleged in the notice. The opponent is required to deliver the copies of the evidence that he has submitted with the registrar to the applicant. If the opponent does not do so, he shall be deemed to have abandoned his notice. 

The applicant within the period of two months (extendible to three) form the date of the receipt of the affidavit of the opponent or the intimation that he does not desire to adduce the evidence, shall adduce the evidence in support of his application with the registrar and also deliver the copies of the evidence to the opponent. In case the applicant does not desire to adduce any evidence but seeks to rely on the facts in the counterstatement, he shall accordingly intimate the registrar as well as the opponent. In case the applicant relies on any evidence already left by him with the registrar, he shall deliver a copy of the same with the opponent.

Within one month (extendible to two) from the date of receipt of the evidence of the applicant, the opponent may submit further evidence strictly in reply to the matters raised in the application and deliver the copies of it to the applicant. Unless the registrar grants a leave, no further evidence shall be left by either of the parties.

 

Hearing and decision

 

Ordinarily, within three months from the date of completion of the evidence, the registrar shall give both the parties one-month notice of hearing. Within 14 days from the date of the receipt of the notice the party who intends to make an appearance shall intimate to the registrar. The party that does not notify within that period shall be considered as not desiring to be heard and the registrar shall proceed ex-parte.

A request for not more than two adjournments for a period of one month each can be made by either of the parties by showing sufficient cause. But if the applicant is not present at the adjourned date of hearing of the application, the registrar shall treat the application as dismissed. Similarly, if the opponent is not present on the date of the hearing and has not notified his intention to appear at the hearing, the opposition shall be deemed to have been abandoned and the application shall proceed for registration. After hearing the parties and considering the evidence the registrar shall consider whether or subject to what limitations the registration shall be granted. The registrar while considering the applicant can also take into accounts the grounds that have not been agitated by the opponent.

If the opponent after giving the notice and the applicant after sending a counter statement does not reside or carry business in India, the registrar may require such party to give security for the cost of the proceedings being carried on before him.