National Legislations Must Protect National Wealth Geographical Indications

Priyanka Sardana and Vijay Sardana

IF you travel to different parts of India, you will observe and find many unique items in every part of India. These can be local arts, local varieties of fruits and vegetables with unique features and local traditional recipes which are liked by large number of people outside that territory but not able to produce the same because of various climatic, geographical and human factors and reasons. In legal terms these can be protected under Geographical Indications provided we have substantial information to provide the point that food product under consideration has some location or region specific feature. Example Basmati, Darjeeling Tea, etc.

There are certain food products which needs greater analysis to establish GI character of the product. Some of the products which are recognized by market are Bikaneri Bhujia for its crispiness, Totapuri mangoes in Chittoor has more TSS than other totapuri areas, Longi Mirchi i.e. Known for its pungency from Kohlapuri, Alphanso from Ratnagiri area for its rich flavor and taste. There can be many products which can be documented for establishing GI character of the food product and can be converted as regional brand for the economic development of the region.

In order to ensure proper protect of the natural and traditional wealth proper legal frame work is vital.

Need for Protection of Geographical Indications on the National Level

As regards the various forms of protection of geographical indications on the national level, three main categories can be distinguished.

  • The first category comprises all possibilities of protection which are not based on a decision taken by the competent authority establishing protection with respect to a particular geographical indication, but which result from the direct application of legislative provisions or principles established by jurisprudence.
  • The second category covers the protection of geographical indications through registration of collective marks (including agricultural labels) or certification marks (or guarantees marks).
  • The third category includes all special titles of protection of geographical indications which result from a decision made by the competent government authority establishing the protection. This category, in particular, comprises the protection of appellations of origin—whether they result from a registration with the industrial property office, as under the new Russian law, or from the adoption of decrees, as is the practice in France since the adoption, in 1919, of a special law for the protection of appellations of origin.

Special Titles of Protection against false or deceptive use:

Already early in this century it was felt that the protection of indications of source against false or deceptive use was insufficient. In addition, the need for the protection and the encouragement of local, traditional methods of production emerged. It was in France where the first statute was enacted which provided for the protection of geographical indications through a special title of industrial property, namely appellations of origin.

The French Law of May 6, 1919, recognized the existence of appellations of origin and laid down conditions for their protection. According to this law, an appellation of origin consists of the name of a country, region or locality that serves to designate a product originating therein, the quality and characteristics of which are due to the geographical environment, including both natural and human factors. This means that only such products are protected under this special title which originates from a specific area and which owe their specific quality to their place of origin. In order to ensure that the products possess the specified qualities, a control mechanism has been set up by the competent authorities, and quality controls are carried out regularly. Only products which comply with the quality standards are protected by an appellation of origin. Initially, appellations of origin only concerned wines and spirits, but later the concept was extended to include other products (such as dairy products, mainly cheese and butter), poultry and plant products.

Because of the success of the French appellations of origin, the same or a similar system was introduced also in other countries, mainly in the sector of wines and spirits.

Registration of Collective Marks or Certification Marks

Can MahaGrapes or MahaMango become internally recognized legally protected global brands exclusively for farmers of Maharashtra? What about Shimla Mirch? Think over it.

The protection of a given geographical indication may not only be based on a public or administrative act, but may also result from a private initiative. With regard to the latter approach, collective marks or certification marks provide a means for the protection of geographical indications independent of statutory or judicial measures. The concepts of collective mark and certification mark (or, in some countries, guarantee mark) differ from country to country. Depending on the applicable national law, a collective mark or certification mark may serve to indicate, inter alia, the origin of goods or services, and therefore may to some extent be suitable for the protection of a geographical indication.

Can farmers capitalize on terms like “MahaGrape MahaMango”?

A collective mark is a mark the use of which is only allowed to the members of a collective body. Such a body can be an association or cooperative of manufacturers, producers or traders. The collective mark is owned by the association which exclusively grants its members the right to use it. The association may be a domestic one or a foreign one. Normally, the use of the collective mark is governed by regulations which have to be submitted to the industrial property office together with the application for registration. The question whether a geographical indication is registrable as a collective mark depends entirely on a given national law. Some national trademark laws exclude the registration of geographical indications as collective marks, although, more recently, that exclusion has been abolished by some countries.

Once a geographical indication has been registered as a collective mark, the association that owns it has the right to prohibit its use by persons who are not members of the association. However, in case of conflict with a senior right, the members of the association may be excluded from using the collective mark. Moreover, the registration of a geographical indication as collective mark may not, per se, prevent the mark from becoming a generic term. Furthermore, the laws of some countries contain strict use requirements which may result in the cancellation of the registration of the collective mark in case it is not continuously used.

In contrast to collective marks, certification marks and guarantee marks are not owned by a collective body such as an association of producers, but by a certification authority. Such authority may be a local council or an association which is not engaged in the production or the trade of the products concerned. The latter is of particular importance because it is the owner of the certification mark who must ensure that the goods bearing the certification mark possess the certified qualities. A certification mark may be used to certify, inter alia, the origin of products or services. The application for the registration of a certification mark has to be accompanied by regulations which govern the use of the certification mark. Regarding the registrability of geographical indications as certification marks and guarantee marks, the same principles as for the registration of collective marks apply.

Where a geographical indication has been registered as a certification mark or guarantee mark, it may normally be used by everybody whose products comply with the requirements set out in the regulation. Such right to use, however, may not exist in case of conflict with a senior right. The institution which owns the registered certification mark or guarantee mark has the right to prohibit the use of that mark by persons whose products do not comply with the requirements set out in the regulations. In general, the protection of a geographical indication through registration as certification mark or guarantee mark is equivalent to that conferred by registration as a collective mark.

Can we learn from France?

A special form of protected geographical indication resembling the concept of collective marks is the French “agricultural label” (in French “label agricole”). An agricultural label is a collective mark that certifies that a foodstuff or a non-nutritious and non-transformed agricultural product (such as cereal seeds) possesses a combination of specific characteristics and a level of quality which is higher than that of similar products. An agricultural label can be a national label (known as “red label”) or a regional label, the latter referring to characteristics which are specific, traditional or representative of a region. Products in respect of which an appellation of origin has been established and some categories of wines (even if not benefiting from an appellation of origin) may not be the subject of protection by way of an agricultural label. The agricultural label is registered in the name of the entity that controls its use. The application of the Decree is not limited to French products, but so far only little use has been made of the possibility of applying the Decree to foreign products. An example of a foreign product is the label for “Scottish salmon”.

Unfair Competition hurting local producers

The use of a certain geographical indication for goods or services not originating from the respective area may be misleading and thus may deceive consumers. Furthermore, such use may constitute a misappropriation of the goodwill of the person who is truly entitled to use the geographical indication. An action for unfair competition—which, depending on the national law, is either based on statutory provisions, as interpreted by court decisions, or on common law—can be instituted in order to prevent competitors from resorting, in the course of trade, to such misleading practices.
Although the conditions for a successful action for unfair competition vary from country to country, the following basic principles appear to be generally recognized. In order to be protectable, a given geographical indication must have acquired a certain reputation or goodwill. In other words, the potential buyers of the product must associate the geographical indication with the place of origin of the goods or services. Such an action further requires that the use of the geographical indication on goods or services not originating from the respective geographical area is misleading, so that consumers are deceived as to the true place of origin of the products or services. Under some national laws, proof of damages or the likelihood of damages caused by such misleading practices is required.

Whereas the principle that misleading use of a geographical indication may give rise to an action for unfair competition is generally recognized, the outcome of such an action is uncertain. In particular, the extent to which the geographical indication in question must have acquired a reputation may vary from country to country.

Inaction on part of producers association can be costly

It may be required that the geographical indication must have been used in the course of trade for a certain time and that an association between the geographical indication and the place of origin of the products and services must have been created amongst the relevant circles. Therefore, a geographical indication, the reputation of which is not yet established on the market, may not be protectable against misleading use by competitors through an action for unfair competition. Furthermore, a geographical indication which has not been used for a certain time may lose its reputation and therefore may no longer be protectable by an action for unfair competition. Geographical indications which become generic terms in a particular country lose their distinctive character and are no longer protectable in that country.

Time to think and act…

Geographical Indications are becoming an important part of trade to promote the commercial interest of legitimate producers. With vast natural resources and diversity, Why Indian producers and processors are not thinking strategically to capitalize on their strengths. It is high time we must think strategically. Time is has come to work smart along with working hard.

 

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