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Geographical Indications

Muthukumaar, G. K. is a Prtner in GMS Law Associates. He was earlier Senior Associate and head of the Chennai Office of Anand and Anand Advocates.

His areas of practice includes, IP litigation before the Madras High Court and The Intellectual Property Appellate Board pertaining to Trademarks, Patents, Designs, Copyright and Geographical Indications. Trademark prosecution before the Trademark Offices including handling of oppositions and arguing cases during hearings. Copyright prosecution for registration of Copyright before the Copyright Registry.

He has extensively handled a wide variety of Geographical Indication registrations pertaining to agricultural and industrial goods, handicrafts and foodstuffs of which many are prominent GIs of the country. He has also undertaken criminal enforcement actions for IP infringement.

Importance of GI registration:
Under the law of Geographical Indications in India, only if a Geographical Indication (hereinafter referred to as, “GI”) is registered in India, then the registration affords legal protection by enabling infringement action possible. Further under the TRIPS Agreement, to which India is one of the signatories, registration in the home country (i.e. country of origin) is a pre-requisite for registration in other member countries.

That apart registration enables protection of the GI and its promotion. It confers exclusive right to the producers concerned to produce and market the GI goods. Production and sale by anyone other than the producers concerned is an offence punishable under the GI law.

Registration therefore enables the entire world demand to be catered to by the producers concerned as opposed to it being met by the world at large, prior to registration. Therefore registration paves the way for the concerned producers to cater to the entire market demand. It thereby increases the sales of the producers, thereby increasing their turnover and profits. This in turn leads to national development and prosperity. This is also called as the cascading effect of GI registration.

Further, GI protection ensures that the consumers get only original GI goods from the place of origin, thereby preventing them from deception and ensuring originality. It forms the basis for initiating infringing action, and to curb piracy and entry of spurious goods into the market.

What could be protected?
A name or a figurative or geographical representation or any combination of them suggesting the geographical origin of goods to which it applies can be protected as a GI in India

Example: Pochampally Ikat, Sri Kalahasti Kalamkari, Kashmir Pashmina, Kashmir Sozani, Muga Silk & Madhubani Paintings, Sikki Grass Products of Bihar.

Who is entitled to seek protection of a GI?
Any association of person or producers or any organization or authority established by or under any law and which represents the interests of the producers concerned is entitled to file an application for registering the GI concerned.

Example:
  1. In the case of Pochampally Ikat two associations of the producers are registered as the proprietors of the Geographical Indication.

  2. In the case of Nakshi Kantha an NGO which represents the interest of the producers is registered as the proprietor of the GI.

  3. In the case of Kashmir Pashmina, Kani Shawl and Kashmir Sozani Embroidery, the proprietor is the society formed by the Government which represents the nature of the producers.

  4. In the case of Alleppey Green Cardamom the proprietor is Spice Board, a commodity board established under the Spice Board Act, 1986.

How to protect?
In order to protect a Geographical Indication many aspects are to be kept in mind. Our firm has handled the largest number of GI registrations in the country. Based on our experience on GI registration I would mention a few aspects to be kept in mind before proceeding for registration.

Firstly the GI has to be identified and coined properly.

Example: In the case of Sri Kalahasti Kalamkari the GI was amended to read as such from that of “Kalamkari” per se because there are other forms of Kalamkari such as “Machilipatnam Kalamkari” that are in existence.

Secondly the applicant has to be identified. As already mentioned in the preceding paragraphs it can be a registered society/s, trust, NGO, statutory body, incorporated company, or a Government Undertaking.

Thirdly the geographical area for which GI protection is to be sought has to be clearly identified and demarcated along with the latitude and longitude specifications. Care should be taken to ensure that genuine producers are not left out.

The geographical area can be a locality i.e. a village, a town or a city of a district/s. E. g. In case of Sri Kalahasti Kalamkari the town ship of Kalahasti near Tirupati in the State of Andhra Pradesh is the territory covered by the GI. In case of Mysore silk the area covered is the premises of the company which produces and markets Mysore Silk products. In case of Pochampally Ikat, two districts in the State of Andhra Pradesh have been identified and demarcated.

The geographical area can be a region i.e. A state or a part of a state or parts of states. E.g. In the case of Kashmir Pashmina, Kani Shawl, & Kashmir Sozani Embroidery the territory covered by the GI registration is the entire State of Kashmir of India. In case of Alleppey Green Cardamom the territory covered is 5 districts in the state of Tamil Nadu and 4 districts in the state of Kerala.

The geographical area can be a territory i.e. a country E.g. In the case of PISCO the territory coved is the entire country of Peru in South America.

Fourthly, documents and relevant material to show proof of origin have to be collected/ consolidated. Because they are important evidence to prove the origin of the GI.

Fifthly a fool proof inspection structure has to be incorporated and put in place to check and certify the GI goods so that quality is ensured.

Lastly the uniqueness of the GI has to be brought out by a techno-legal analysis of the uniqueness of the GI concerned. Uniqueness can be based on quality, reputation or other characteristics attributable to the place of origin of the GI.

Registration of the GI: The GI application has to be drafted and filed at the Geographical Indications Registry, strictly in compliance with the legal requirements specified under law. The GI Registry then examines the application and subject to compliance the application is advertised in the GI journal. If there are no oppositions within the opposition period then the GI registration is granted in favour of the applicant who is then legally recognized as the proprietor of the GI. Thereafter the users of the GI must also register themselves as such, so as to be able to use the GI.

Post Registration Measures
This includes creating public awareness on the need for the use of the GI goods and as to how it aims at improving the life and livelihood of the artisans concerned by simultaneously protecting the culture, tradition and heritage of our country.

Vigilant market watch/ inspections should be undertaken. Based on which infringement action, civil and/or criminal as appropriate has to be initiated against the infringers.

In a criminal prosecution a conviction can result in imprisonment and fine. The minimum period of imprisonment is six months and the maximum is three years. The minimum amount of fine imposable is Rs.50, 000/- and maximum is Rs.2 Lakhs. The duration of imprisonment and amount of fine vary depending on the nature of infringement committed.

In a civil action declaratory relief, injunction, accounts, delivery of infringing goods etc can be claimed.

To facilitate taking up of post registration measures, a separate fund should be set up. In cases where in-house funding is not possible, the Government or NGOs can be approached for financial assistance. Many registered GIs are facing acute shortage of funds for taking up post registration measures. So the Government and NGOs could facilitate setting up of funds and implementing post registration measures.

Conclusion
As part of my social responsibility I have requested my wife to prefer only GI goods wherever possible. Considering the interest and benefit to the artisans by the use of each one of us of only GI goods wherever applicable, she has agreed. This is only a modest beginning.

So, if each one of us begins by using only GI goods wherever applicable, like giving a marriage gift of a Silver Filigree article from Karim Nagar, or using Kondapally Toys, or Channapatna Toys as play things for our children, buying Nirmal Furniture or Mysore Rose Wood Inlay Furniture for our homes, decorating our house/ office with Nirmal Paintings or Madhubani Paintings or other GI protected handicrafts, then it would help a lot in increasing the demand, sales and profits to the artisans.

This would go a long way in improving the life and livelihood of the artisans and in realizing the dream of India as a developed country in the near future.



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