First in time, first in right

Written by Latha R Nair | Updated: Aug 31 2008, 05:34am hrs
Since the setting up of the Geographical Indications Registry in Chennai in 2003, a host of names have been registered as geographical indications (GIs) in India under the Geographical Indications of Goods (Registration and Protection) Act, 1999. It is indeed important to register GIs. However, at a time when everything is monopolised in the name of intellectual property (IP), it is also equally important to reflect on the dual objectives of the registration and protection of GIs. These dual objectives are to protect the community rights of stakeholders and to prevent the end consumer from getting deceived or confused by fakes or sub standard products.

Although registration safeguards the community rights, prior to registration, much ground work is required to prevent consumer deception and confusion. Ideally, the specification of goods, unique features of the product and the area of production in a GI application should match with the basic consumer expectations relating to the GI rather than what the stakeholders or other players believe to be important.

To illustrate, if the famous Feni originates only from Goa, the fact that a similar drink is produced in the neighboring Maharashtra and incorrectly traded as such to piggy ride on the fame of Feni should be irrelevant to any GI application filed by Goan stakeholders to protect the name. This is because consumers associate Feni only with Goa and to include the Maharashtrian regions in the application would deceive and defraud consumer expectations besides causing confusion. Yet another pre-registration aspect is to establish a functional inspection system which would ensure that the end product that reaches the consumer is consistent in quality and consumer expectations and that there is no consumer deception and confusion. Without an inspection system, supply chain integrity of a product cannot be maintained which could result in diluting the GI significance of the product.

Hence, filing a GI application should be a premeditated and well-thought out task and requires a good deal of preparation in terms of organising all of the above. The Melton Mowbray pork pie controversy in the UK a couple of years ago is an apt example demonstrating the awkward consequences of a not so well considered

GI application.

Once an application is processed and registration is granted, it should not be assumed that the GI is safe forever. In fact, the real action begins after the grant of registration at two levels, namely the commercial and legal levels. At the commercial level, the inspection body set up would have to relentlessly monitor the market for fakes or substandard products and the registrant body must escalate the promotional activities so as to derive maximum benefit out of the registration. At the legal level, instances of violation reported by the inspection body should be assiduously pursued to their logical end. If the GI is internationally famous, it would also be essential to have a worldwide watch agency to be appointed to report any attempted violations so that prompt and timely action may be initiated against such violators. Darjeeling tea, administered by the Tea Board India is a classic example of a well administered GI both in India and internationally.

India is a country with a highly diverse culture and we have countless products which are unique to the various regions in India. If properly identified and protected, the economic premium in these products could be productively tapped. While registration is unquestionably one of the keys to tap such economic premium, the post registration aspects discussed above are equally, if not more, important. These aspects would help nurture and establish the rights in the GI and keep the protection process in existence.

A time has come for GI stakeholders in India to travel beyond the process of registration and look at the unexplored economic opportunities in Indian GIs. For instance, GIs have a wonderful potential to increase tourism. Some European examples are the Champagne wine tours, Swiss Chocolate tours and the Scotch Whisky trails where tourists are taken through guided tours of vineyards/ wine cellars, chocolate factories and distilleries respectively for a fee. It is high time India took some cues from Europe and exploited the aura of exoticism perceived by the foreign eye about everything that is Indian. Would it not rake in foreign exchange if tourists are offered a chance to experience how a Kancheepuram sari is woven or how a Tanjore or Madhubani painting is finished or how an Aranmula mirror is crafted The tour may be wound up with an opportunity to purchase the products. As for the tourism industry, it would be a raw showcasing of the diverse Indian art and crafts which are inextricably linked with the Indian culture. For the tourist, this could well turn out to be that perfect and memorable Indian experience!

Commercially, such a venture could give an economic boost to the region due to a demand for other industries arising out of the inflow of tourists. In the process, there is also a bonus opportunity that makes the GI internationally visible. Legally viewed, the art and the artisan need not move out of the region, a disheartening practice that could dilute the GI significance of the product. The production can thus be confined to the region and one of the essential conditions of a GI, that it must be produced within the region, can be adhered to.

GIs can, therefore, be safely termed as a poor mans IP in India because most of the stakeholders of GIs are farmers, artisans and craftsmen belonging to the lower economic strata and, ideally, the benefits of GI registrations must trickle down to them. It would be interesting to do a reality check on all the GIs registered in India to verify this.

Viewed from an international perspective, there are still various unresolved issues that haunt GI protection. The much talked about Article 23 (TRIPS) extension to products other than wines and spirits has not been resolved till date. The lack of uniformity of approach in protection of GIs worldwide is another aspect that plagues the international enforcement of GIs.

Also, the recent controversy relating to the Pashmina application filed in India, raises another interesting international aspect in the protection of GIs, which is the protection of GIs shared by more than one country. The GI application for Pashmina wool filed by the Srinagar based Craft Development Institute has been opposed by a Pakistani body, staking a claim that Pashmina is produced in Pakistan as well. Again, it would be useful for India to look at the European law (EC Regulation 510/2006), which mandates that in such situations a joint application should be filed by all the concerned countries.

In India, the jurisprudence relating to GIs have begun evolving only in recent times. So the stakeholders and other concerned persons should be open to looking at established practices and functional examples from other jurisdictions. Most importantly, all those concerned must not lose sight of the abovementioned dual objectives of GI protections. Only this will ensure that the still nascent GI protection system in India is not rendered meaningless.

(The author is a partner with the IP law firm K&S Partners, Gurgaon. The views expressed here are personal)