An Introduction to Geographical Indications: New Perspectives and Recent Developments

I. Introduction

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. 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.”²

Most commonly, a geographical indication consists of the name of the place of origin of the good, such as Jamaica Blue Mountain or Darjeeling. But non-geographical names, such as Vinho Verde, Cava or Argan Oil, or symbols commonly associated with a place, can also constitute a geographical indication. In essence, whether a sign functions as a geographical indication is a matter of national law and consumer perception. Moreover, in order to work as a geographical indication, a sign must identify a product as originating in a given place. In addition, the qualities or reputation of the product should be essentially due to the place of origin. Since the qualities depend on the geographical place of production, there is a link between the product and its original place of production. Marks indicating the geographical origin of goods are the earliest types of trademarks and were established to differentiate goods that possessed some unique quality reflecting environmental factors or processing methods or manufacturing skills.³

The importance of the geographical indication is emerging, especially in developing countries, with an intention to protect the authenticity of rural products. A geographical indication is a signature that verifies the authenticity and also the place of origin of that product having unique features.⁴

As GI differs from region to region and products to products, there is no single. As every nation has got its national laws for the protection of GI, the terminology and the rules depend on a nation to nation. GI has been used to define agricultural or any other products being originated from specific regions or grown /manufactured by a community.

1. Definition of Geographical indication by WIPO: -

According to WIPO, GI is a signature that indicates the authenticity of the products originated from a specific region or manufactured by a particular community. The WIPO defines GI as, "...a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin.”⁵

2. European Commission Regulation, on the Protection of Geographical Indications, Designations of Origin and Certificates of Specific character for Agricultural Products and Foodstuffs: GI is defined as,"...being the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or foodstuff:

• originating in that region, specific place or country, and
• which possesses a specific quality, reputation or other characteristics attributable to that geographical origin ... the geographical link must occur in at least one of the stages of production and /or processing and/or preparation of which takes place in the defined geographical area."⁶

While analyzing further, we can see that the above definition is mainly focused on agricultural products and foodstuffs. A GI can be provided to products originating in a specific region or country having a specific quality or characteristics of that region.

3. Definition under the Geographical Indication of Goods (Registration and Protection) Act 1999 of India: "geographical indication," in relation to goods, means an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristics of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be.

Explanation: For the purposes of this clause, any name which is not the name of a country, region or locality of that country shall also be considered as the geographical indication if it relates to a specific geographical area and is used upon or in relation to particular goods originating from that country, region or locality, as the case may be"⁷

II. Background

The TRIPS Section on GIs represents a delicate balance between different interests that was reached during the Uruguay Round. While the negotiations on certain aspects of TRIPS could, to a large extent, be characterized as a North-South debate, the negotiations on GIs, particularly on wines and spirits, were characterized by what was then described as an ‘Old World-New World’ debate; that is to say between the ‘Old World’ countries of Europe and the ‘New World’ countries of the United States, Australia, Canada, New Zealand, Argentina and Chile and some others. These differences in interests also had some parallels with divergent interests in the agricultural sector, and links were made with the Uruguay Round negotiations on agriculture.⁸

An additional consideration in the Uruguay Round negotiations, and one that remains applicable today, is the diversity in the national systems for the protection of GIs, where there is a considerably lower level of harmonization than, for example, in the areas of patents or trademarks. The rules of the TRIPS Agreement on GIs reflect this diversity and complexity of systems, as seen in the language used in certain provisions of the GI Section. This is illustrated in the WTO Secretariat’s summary of members’ responses to a checklist of questions regarding the way they apply the TRIPS provisions on GIs.⁹ It shows how members’ national and regional systems for the protection of GIs include a mixture of laws of general application relating to business practices, in particular against consumer deception and unfair competition, certification or collective mark protection (see Module III) under trademark law, and a range of sui generis systems (i.e. systems created specifically for a category of IP) dedicated to the protection of GIs.

The two terms which were linked to Geographical Indication before the enactment of TRIPS agreement were "Indications of Source" and "Appellation of Origin". There is no proper explanation for indications of a source either in the Paris Convention or in the Madrid Agreement. However, as per the clarification provided in the Madrid Agreement, it is the indications, signifying the importance of a country or place of the origin of the product.¹⁰ Unlike geographical indications, indications of the source do not consider quality, characteristics, and reputation, which are the main attributes of geographical indications.¹¹

On the other hand, the appellation of origin strictly adheres to the country, region, or locality. The quality and characteristics which include natural and human factors of a geographical origin are taken into consideration for products. The term appellation of origin has been used in the Paris Convention, but a proper definition is provided in the Lisbon Agreement. Article 2 of the Lisbon Agreement defines appellations of origin as, "… 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."¹²

The basic difference between two terms, Geographical indications, and appellation of origin, is that in the case of the appellation of origin, the place of origin plays a very important role. This means that the production and processing of the raw materials of the product should happen at the mentioned place of origin. Unlike, the appellation of origin for geographical indication, it is not necessary that the production and processing should happen at the defined geographical area.

The Uruguay Round of GATT negotiations began in 1986, at the same time as India’s development policy-making process was in a watershed. As a paradigm shift in its policy by the time India launched its large-scale economic reform package in 1991, the Uruguay Round of negotiations were going well, paving the way for Margakesh in 1994 and world trade. Organization established. The NDA remained cautious and somewhat dysfunctional player during the early years of the Uruguay Round of negotiations, given its longstanding legacy of growth strategy and inward protectionist trade policy.

However, in Doha, India wanted to patronize other products beyond wine and spirits under the Doha Geographical Indication (G.I.).Many countries wanted this high level of security to be seen as a negotiation for other products, as they see a higher level of security to improve their products by separating their products from their competitors more effectively and They are “belittling” other countries. Conditions. Some others opposed the move, and the debate includes the question of whether the Doha Declaration provides a mandate for negotiations. Those opposing the expansion argue that the current (Article 22) level of protection is sufficient. They warn that providing augmented security will be a burden and disrupt existing legitimate marketing practices. India, along with a host of other similar countries, pressed ‘expand the scope of Article 23’ to cover all categories of goods. However, countries such as the United States, Australia, New Zealand, Canada, Argentina, Chile, Guatemala and Uruguay are strongly opposed to any ‘expansion’. The ‘expansion’ issue formed an integral part of the Doha Work Program (2001). However, as a result of the wide divergence of views among members of the World Trade Organization, there has not been much progress in negotiations, and implementation remains an ‘outstanding implementation issue’.¹³

III. TRIPS provisions on GIs

Section 3 of Part II of the TRIPS Agreement consists of three provisions. Article 22 deals with the definition of GIs and sets out the minimum level of protection to be available for GIs identifying any given type of good. Article 22 also addresses the question of trademarks bearing GIs. Article 23 provides for a higher level of protection for GIs identifying wines and spirits. It further sets out additional rules regarding the use of such GIs in or as trademarks and provides for a built-in agenda for the negotiation of a multilateral system of notification and registration of GIs for wines. Article 24 provides for certain exceptions that allow the continued use of GIs for goods not originating from the location associated with the GI, such as when a term has become generic.

IV. Conclusion

Although they are one of the oldest forms of IP, geographical indications have only recently become the subject of generalized interest. In many countries, the need to comply with obligations under the TRIPS Agreement triggered this focus on geographical indications. Countries soon realized that there is potential value in this form of IP. The fact that geographical indications are embedded in a territory means they can be effective tools for promoting locally-based development. Their close linkage with tradition suggests that they can have a positive impact on the preservation of traditional cultural expressions and traditional knowledge. With the increasing recognition of geographical indications’ multifunctional character, the challenge will be to design and implement a comprehensive geographical indication scheme that could constitute the basis for sustainable development.

In the era of Intellectual Property, it is essential to provide adequate protection to GI as it is an emerging IP. Globalization has decreased the distance between the countries and resulting in increase and improved trade relations among the nations. But, this has sometimes adversely affected the business of local products, and people started opting branded products over local products. Here comes the need to vindicate the local products to the global market. Also, these products must be adequately protected. Hence to protect the interest of the local market, GI plays an important role.

There are a variety of products for which the manufacturing and production processes are only known and limited to the community that manufactures. The natural and geographical factors of that region also play a significant role in the development of that product. These products sometimes become an identity of that geographic region. Hence guaranteed protection must be provided for such products against illegal usage of such products. GI helps to protect those products from illegal use. Thus Geographical indication was introduced. A geographical indication is a sign, which indicates the origin of a product. The origin is due to the various geographical -environmental factors like human factor, natural factor, or maybe a combination of both, which attributes some quality, reputation, and specific characteristics to the products. It is primarily for the protection of the interest of a community concerning a specific item.

India is a place where there is a treasure, blessed with rich regular assets of farming items and different merchandise of high monetary worth. Rustic people in different districts of our nation have one of a kind aptitude and ability to create high-quality items like crafted works, adornments, materials other related items and they are engaged with the above expertise for a few ages. Frequently associated with customs, practices and culture, geographical indications are firmly intertwined into provincial lives which utilize conventional strategies, practices and skill to deliver these products related to land signs.

*****