The Protection of Geographical Indications in India: IPR CLUB

The Protection of Geographical Indications in India: IPR CLUB OurLegalWorld

Geographical Indications in India

Geographical indications (GIs) are intellectual property (IP) rights that serve to identify a product that originates from a specific geographical area and that has a quality, reputation, or other characteristics that are essentially attributable to its geographical origin. The relationship between objects and place becomes so well known that any reference to that place is reminiscent of goods originating there and vice versa. It performs three functions:

• First, they identify the goods as to the origin of a particular region or locality;
• Secondly, they suggest to consumers that goods come from a region where a given quality, reputation, or other characteristics of the goods are essentially attributed to their geographic origin;
• Third, they promote the goods of producers of a particular region. They suggest the consumer that the goods come from this area where a given quality, reputation or other characteristics of goods are essentially attributable to the geographic region.

Article 22 of the TRIPS Agreements define a geographical indication as “signs that originate in a member or identify a good location in an area or locality where a given quality, reputation, or speciality is assigned to its geographical location Is given Is essentially acceptable”.

Infringement of geographical Indication

A registered geographical indication is violated by a person who is not a registered proprietor or authorized user, uses such a sign on the goods or suggests that such goods originate in another geographic area, which confuses someone other than the actual place of goods public. A geographical indication of the trademark also infringes upon any use that constitutes an act of “unfair competition”, detailed explanation of 1 and 2 of Section 2(b). This provision seeks to give effect to Article 22(2)(b) of the TRIPS Agreement, which requires members to “provide legal means for interested parties to prevent any use that the Article 10bis of the Paris Convention (1967). A geographical indication is also violated by a person who is not a registered proprietor or authorized user, who uses another geographical indication for the goods, which is actually true as to region, or locality from where the goods originated and publicly misrepresentation that goods originate in a region, or a locality to which such registered geographical indicators belong.

Article 22 (4) of the TRIPS Agreement states that the preservation of the geographical Indication of a trademark must be enforced even if the G.I. “is truly true as to the area, region, or locality in which the goods are in another territory” is generated “.

Remedies for infringement of Geographical Indications

Remedies relating to infringement of geographical indications are similar to remedies related to trademark infringement. Similarly, under the (Indian) Geographical Indicators Goods (Registration and Protection) Act, 1999, falsification of a geographical indication. Remedies which are available for conservation of geographical indications may be broadly classified into two categories:

(i) Civil remedies

• Injunction

Injunctions include temporary injunction and permanent injunction. An injunction is granted for the protection of violations of related items, documents or other evidence in respect of the subject of the suit. An injunction is granted for restricting the defendant from disposing of or dealing with his products which may adversely affect plaintiffs’ ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff as compensation of damage. The aforesaid remedy of injunction is more effective and can prevent greater harm to the plaintiff. Or other peculiar remedies that may eventually be given to the plaintiff.

•  Damages 

The remedy of damages or account of profits in the form of compensatory damages is available to prevent infringers from infringement. Damages (other than nominal losses) or accounts of profits may be ruled out Where the defendant satisfied the court that he was unaware and there was no reasonable basis for that Assuming that the plaintiff’s geographical Indication was registered when he was engaged in using it; And when he became aware of the existence and nature of the geographical Indication, he stopped using it.

•  Delivery of the infringing labels and indications containing products

It is in the court’s discretion to order the infringer to deliver up infringing labels and indications for destroying.by taking relevant circumstances into consideration the court may or may not order for such remedy. All the mentioned remedies are also available for the action of passing off. The actions of Passing off are initiated against the infringement of unregistered geographical indications.

(ii) Criminal Treatment.

Criminal remedies are more effective as compared to civil remedies because the former can be disposed of quickly. Pendency of civil suits does not justify a stay of the criminal proceedings which involve the same question. Since criminal proceedings directly attacking the violator’s honour and social status In some cases he comes forward for the Settlement of the matter out of court to save their reputation. Chapter VIII of the Act deals with offences and punishment for such crimes. The Act has penal provisions for violation of various provisions related to Geographical indications which are discussed below:

• Falsifying and incorrectly applying geographical indications to the goods.
• Selling goods to which false geographical indications apply.
• Misrepresentation of a geographical indication in registered form.
• Improperly describes a place of geographically connected business indication Registry.
• Falsification of entries in the register.

The punishment granted for the infringement offences varies from six months to three years imprisonment and a fine of not less than rupees fifty thousand but may extend to rupees two lakh. However, the court for adequate and special reasons in writing may grant lesser punishment. 

Case Laws

• Banglar Rasogolla v. Odisha Rasagola

In November 2017, the West Bengal State Food Processing and Horticulture Development Corporation Limited registered G.I. as Ras Banglar Rasogola. It was reported that Bengal won the dormant war between Odisha and Bengal, which would own the famous dessert. The legal battle for G.I. registration started when objections to G.I. registration were lodged, and it was said that this famous dessert originated at Jagannath temple in Puri, Odisha. An application to remove the registration of G.I. status was filed on February 2018. Meanwhile, G.I. Registry in July notified that Odisha registered G.I. as ‘Odisha Rasgola’, after which several reports were released. Odisha did not give up in the race but won one. It is very important to note that the G.I. The registry has not registered the word all Rasogola / Rasgola ‘. It has prefixed two words specifically for G.I. tag, one is ‘Banglar’, and the other is ‘Odisha’. To say that ‘rasogola / rasgola’ is a general term, which any person can use in his trade and business. Thus, as far as the law is concerned, neither of the two states has got a monopoly on the word ‘Rasogola / Rasola’. Therefore, it is free to sell sweets to anyone in the trade as Rasgulla / Rasgola or any other synonym. What is prohibited is the use of the words “Odisha rasgola” and “Benglar rosogola” by anyone other than authorized users ‘under the law.

Also Read: Bajaj Auto Ltd. Vs T.V.S. Motor Company Ltd JT 2009 (12) SC 103

• Banganapalle Mango Case

‘King of Fruits’ means mangoes from Banganapalle received G.I. tag in the year 2017. The government-fixed logo features a yellow-coloured shiny fruit around which the tagline says “Banglapple Mango from Andhra Pradesh,” showing farmers with images of a man and a woman. From now on anyone has to apply to become the first authorized user to sell or produce and this will require a No Objection Certificate (NOC) from the Commissioner of Horticulture Development Agency, Government of Andhra Pradesh, Department of Horticulture. The fruit is also known by many types of sages such as Beneshan, Banahan, Benishan, Chapati, Safeda, Banganapalli, Banginapalli, Banganapalle, etc. The main attraction of the fruit is that it can maintain its quality in cold storage for three months. Documents submitted to the Registry stated that ‘the prominent feature of Banganapel mangoes is that they have very light spots on their skin, stones are diagonal in shape and have very thin seeds, which have sparse and soft fibres. The government also called the original centre of Kurnool district, which includes Nandyal Mandal in Banganapalle, Penam and Telangana and Khammam, Mahbubnagar, Rangareddy, Medak, Adilabad districts. According to an affidavit furnished in 2011, the then Commissioner of Andhra Pradesh, Rani Kumudini said that about 7,68,250 families were involved in the production of Banganapalle mangoes. An estimated 24.35 lakh metric tons of mangoes were grown every year in Andhra Pradesh, and around 5,500 tons of Banganpal mangoes were exported annually to countries like the U.S., U.K., Japan and the Gulf countries.

References

• https://www.wipo.int/ip-outreach/en/ipday/2022/toptips/geo_indications.html
• https://blog.ipleaders.in/geographic-indication-law-in-india/?amp=1
• https://www.mondaq.com/india/trademark/1070894/intellectual-property-rights–geographical-indications
• https://en.m.wikipedia.org/wiki/Geographical_indication

Written by Anjali Kumari (IPR Club Intern)