This article has been written by Ms. Janaki Nair Vineetha, a fifth -year student at Symbiosis Law School, Pune.
Intellectual Property [IP] exists in our world today in a wide variety of different forms. The major IP entities are knowledgeable to a majority of the public and these entities would be following three – Patents, Copyrights and Trademarks. All three of the IP entities obtain its rights and protections merely due to their novelties. There is no other intangible factor which decides its uniqueness. This is not true for the IP entity that is the topic of the present article – Geographical Indications [GIs].
As its name suggests, geography is the deciding factor of GIs. In basic terms, GIs are IP protection rights accorded to a product/service originating from a definite geographical space. The World Intellectual Property Organisation [WIPO] defines GIs as the signs used to indicate products which have a particular geography of origin and equipped with characteristics or reputation which is unique to that geography. The connection between the location and the product should not be coincidental; it should have a strong association with the place where it is found or manufactured. This connection can be in the form of location specific characteristics or a reputation unique to the product found in a particular location.
TRIPS AND GIs
As a member of the World Trade Organisation [WTO], India also shortly became a signatory to the Trade – Related Aspects of Intellectual Property Rights [TRIPS] agreement after it came into force in the year 1995. The TRIPS agreement protects various IP entities as well as the associated rights in matters related to international trade and urges its members to expand their own domestic laws in relation to IP protection, as long as it does not violate the provisions of the agreement.
The TRIPS agreement has dedicated a particular section itself to the definition and protection of GIs. In fact, TRIPS became the first multilateral treaty which explained about Geographical Indications in such an exclusive and detailed manner. According to TRIPS, GIs have the following characteristics:
- They are indications which displays the originating territory of a good,
- The good in question would have to have a given characteristic or reputation attributable to the originating territory.
The minimum standard of protection that is accorded to the member states irrespective of the good is the prohibition of using the good in such a manner that the good could be doubted to have originated in a different geographical territory other than its true place of origin, thereby misleading the public wilfully.
THE BIRTH OF GI ACT OF 1999
The down effect of Article 22 is that it is only mandatory for other countries to extend protection to the GI if the GI is protected in its origin country. Such a loophole in the TRIPS provision was abused, which accelerated the Indian Government to realise the importance of GIs. In fact, three famous Indian precedents alerted India of the need to create a structured and comprehensive framework for GIs. The three case laws are discussed below:
- THE CASE OF NEEM PATENT
The Neem Tree found in India or the ‘blessed tree’ of India, has been known to cure all ailments known to man due to its usage in treating patients with leprosy, diabetes, ulcers, etc. The virtues of the Neem Tree have been explained or immersed in the Indian culture since Upavana-Vinod, which was an ancient treatise relating to agriculture written in Sanskrit. The US and India were involved in a dispute relating to this plant in the latter half of the 90s, as the former country developed a Neem extraction technology and obtained a patent for the same. It led to severe public outcry and Indians protested for the reclamation of the Neem tree, which resulted in success in the year 2000 by way of the patent getting revoked.
- THE CASE OF TURMERIC
Once again taking place in the year 1995, the United States of America granted two NRI researches the patent to use turmeric for wound-healing properties. India disputed against such patent grant at the United States Patent and Trademark Office (USPTO) claiming that the patent was based on ‘Prior Art’ that was already existing as traditional knowledge in India. India also managed to present an ancient manuscript as well as a journal published in 1953 wherein the usage of Turmeric is talked about. The USPTO cancelled the patent granted to the US researchers.
- THE CASE OF BASMATI RICE
In this 1997 case, the USPTO granted a patent to the American company Rice Tech Inc. who claimed that they had invented a new breed of Basmati grains that are of even superior quality than the ones found in India and Pakistan. Again, met with severe opposition and opposing evidence from Indian agricultural scientists, only 3 claims, which talked about the properties of the new hybrid variants, out of the 15 to 20 original claims were able to hold on to the patent against Indian challenges. However, it took an excruciating 3 years for the patent office to revoke all the claims.
Even though India won the above three cases, trouble in relation to the misuse of GIs by other countries continued. It is reported that India had to challenge 40 more such cases in more than 20 different countries. In the years leading up to the establishment of the GI Act of 1999, foreign countries abused India and its then non-industrialised culture to acquire exclusive dominance and control over the biological resources and products which were being utilised in India since ancient times. This phenomenon was termed as ‘bio-piracy’.
As the bio-piracy kept increasing, India finally understood that the best method to keep it in check would be to have its own domestic legislations relating to Geographical Indications, for products and resources that have been present in the country due to its traditional knowledge being passed down from generation to generation.
Thus, the Geographical Indications of Goods [Registration and Protection] Act was created in the year 1999, and the Geographical Indications of Goods [Registration and Protection] Rules was created in the year 2002, and they came into effect in the year 2003. Section 2 (e) of the 1999 Act defines GIs in relation to the goods that they are attached to. GIs refer to indications that identifies a particular good as originating from a particular territory. These indications can be in the form of:
- Name or abbreviation of a name,
- Geographical or Figurative Representation, etc.
Moreover, Section 11 of the GI Act, 1999 talks about the registration of GI. The sub-clauses provide a lengthy explanation for the process of registration. In the case of Tea Board v. ITC Ltd., it was held that the GI Act only relates to goods and not services.
Although the TRIPS had pure motives in creating a better IP protected international arena for every IP, especially the less known ones such as GIs, still it fell short when the protection had to be extended to the domestic sphere. As far as India is concerned, the establishment of the GI Act and its Rules had been instrumental in the upgraded protection of GI status to a lot of goods. It is up to the Indian government to decide the kind of products that can be accorded higher levels of protection, and not any international institution.
- CASE LAWS AND STUDIES
- Tea Board v. ITC Limited., (2011) 5 CHN 1.
- Dr. Nomani, Dr. Rahman, Bio Piracy of Traditional Knowledge Related Geographical Indications: A Select Study of Some Indian Cases, MANUPATRA, http://docs.manupatra.in/newsline/articles/Upload/EAF22E08-7444-40EA-A07C-CBCE1F6F6FCB.pdf , (Accessed on 19th December 2022, 07:29 PM).
- Case of the Turmeric Patent (1997, USPTO).
- Utsav Mukherjee, A Study of the Basmati Case (India-US Basmati Rice Dispute): The Geographical Indication Perspective, SSRN, http://dx.doi.org/10.2139/ssrn.1143209 , (Accessed on 20th December, 2022, 06:54 PM).
- INTERNET ARTICLES
- Geographical Indications, https://www.wipo.int/geo_indications/en/ (Accessed on: 18th December 2022, 06:13 PM).
- Geographical indications and TRIPs: 10 Years Later. A roadmap for EU GI holders to get protection in other WTO Members, Commission of the European Communities, https://trade.ec.europa.eu/doclib/docs/2007/june/tradoc_135088.pdf (Accessed on 19th December 2022, 05:29 PM).
- Srivastava, Suresh C. “Geographical Indications and Legal Framework in India.” Economic and Political Weekly, vol. 38, no. 38, 2003, pp. 4022–33. JSTOR, http://www.jstor.org/stable/4414050 . Accessed 19 Dec. 2022.
- Saipriya Balasubramanian, Traditional Knowledge and Patent Issues: An Overview Of Turmeric, Basmati, Neem Cases, MONDAQ, https://www.mondaq.com/india/patent/586384/traditional-knowledge-and-patent-issues-an-overview-of-turmeric-basmati-neem-cases (Accessed on 20th December, 2022, 06:46 PM).
- Kishan Bansal, Case Study of Rice Tech (India – US Dispute) and Transformation of India From Trademark Act to Sui Generis System, 4 (2) IJLMH Page 2453 – 2461 (2021), DOI: http://doi.one/10.1732/IJLMH.26536 (Accessed on 20th December, 2022, 06:59 PM).
- Art. 1, Part 1, Agreement on Trade – Related Aspects of Intellectual Property Rights, 1995.
- A.22, Section 3, Part II, Agreement on Trade – Related Aspects of Intellectual Property Rights, 1995.
- A.22 (2) (a), Section 3, Part II, Agreement on Trade – Related Aspects of Intellectual Property Rights, 1995.
- The Geographical Indications of Goods [Registration and Protection] Act, 1999
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