“Darjeeling”, “Ceylon”, “Assam”, “Kolhapuri”, “Banarasi”, “Champagne”, “Roquefort”, “Chianti”, “Sheffield”, “Camember”, “Havana” are some well-known examples for names which are associated throughout the world with products of a certain nature and quality. One common feature of all these names is their geographical connotation, that is to say, their function of designating existing places ,towns, regions or countries. However, when we hear these names we think of products rather than the places they designate.
There are various conventions and agreements addressing the issues of protection geographical indications. These include Paris Convention for protection of industrial property, TRIPS Agreement, Madrid Agreement for the repression of false or deceptive indications of source on goods and Lisbon Agreement for the protection appellation of origin and their international registration.
The Paris Convention for the Protection of Industrial Property does not use the term geographical indication. Article 1 paragraph (2) defines as subjects of industrial property, inter alia, indications of source and appellations of origin. This is the terminology traditionally applied and still officially used in the conventions and agreements administered by WIPO. According to this terminology, the following distinction is made between indication of source and appellation of origin:
Indication of Source means any expression or sign used to indicate that a product or service originates in a country, a region or a specific place. For example, Made in India is an indication of source. The Appellation of Origin means the geographical name of a country, region or specific place which serves to designate a product originating therein, whose characteristic qualities are exclusively or essentially due to the geographical environment, including natural and human factors. For e.g. -“Darjeeling Tea” or “Champagne Wine” represents Appellation of Origin
Make in India and GI:-
One of the objectives of the “Make in India” programme is to improve and protect the Indian intellectual property (IP) regime. The steps envisaged to achieve this objective include increased posts in IP offices, e-filing facilities, major fee reduction for Micro, Small and Medium Enterprises, holding awareness programmes etc.
A less discussed IP right in this context is ‘geographical indications’ (GIs), a right aptly described as “sleeping beauty” (as it was in slumber till the advent of the Trade-Related Aspects of Intellectual Property Rights Agreement) in the mid-1990s by Florent Gevers, a renowned European IP lawyer. GIs indicate goods as originating in a specific geographical region, the characteristics, qualities or reputation thereof essentially attributable to such region. GI-branded goods possess a recall value amongst consumers who essentially attribute these characteristics, qualities or reputation to such geographical origin. Scotch whisky, produced only in certain regions of Scotland in accordance with regulations, is an example.
Europe has been protecting GIs since the 1800s.
The GI ripple effect
GIs support and protect local production (as opposed to global production), generate local employment and are mostly untouched by industrialisation, originating in villages or small towns. Since consistent quality is a must in GI-branded goods, and often cements itself as a consumer recollection point, producers are expected to diligently follow specific production methods.
Champagne, cognac etc are some European names that started humble lives decades ago and became the icons that they are today owing to such quality control and perseverance. Many European GIs have also successfully built up ancillary industries like tourism and lodging in the respective regions, enabling visitors to get a first-hand experience of the manufacturing process and absorb the history thereof. Such ancillary industries also create local employment and aid in the socio-economic development of the region in the long run.
Complying with World Trade Organisation obligations, India enacted the Geographical Indications of Goods (Registration & Protection) Act, 1999 (GI Act) and has set up a registry in Chennai to register such names. Covering agricultural goods, manufactured and natural goods, textiles, handicrafts and foodstuffs, the GI Registry’s website lists 238 registered names as of March 2016. While the list has popular GIs like Basmati rice, Darjeeling tea and Pashmina shawls, many names on the list are lesser known or never heard of, despite being in existence for decades.
With emphasis laid on innovation, new initiatives and robust infrastructure, IP rights like patents, designs and trademarks can prima facie find a place in the Make in India programme.
Despite the gradual rise in GI registrations, the role and scope of GIs in the Make in India programme has perhaps remained unnoticed in discussions. Considering that GI-branded goods can be made 100 per cent in India without the need for any foreign direct investment (FDI) and that they can promote socio-economic development of the respective regions (like their European counterparts), GIs are perhaps the most ideal IP rights to foster and realise a programme like Make in India.
Quality issues in India
So why haven’t GIs naturally shown themselves up as a potential tool to aid the programme? One of the foundations of this initiative is the making of quality products. So, does the legal framework for the protection of GIs in India emphasise the importance of quality products? Europe has always recognised the need to preserve and maintain high quality in such origin-specific goods. The European law on the protection of names relating to agricultural goods and foodstuffs (ECR 1151/2012) recognises that GIs give a competitive advantage to producers and enable consumers to make more informed choices by providing clear information on origin-specific products and their characteristics. To preserve this consumer trust, the European law mandates: (i) effective verification and controls at multiple levels in the supply chain, ensuring compliance with product specification before placing it in the market and (ii) market monitoring of the use of the names to ensure legal compliance.
In contrast, India’s GI Act does not lay much emphasis on inspection and monitoring mechanisms for GI protection. The only two references thereto appear in the enabling rules in Rule 32(6)(g) and Form GI-1. While Rule 32(6)(g) requires an applicant to list particulars of the inspection structure, “if any”, to regulate the use of the GI, Form GI-1 perfunctorily asks for the details of an “Inspection Body”. Quality associated with geographical origin is the hallmark of a GI and the current legal framework evidently lacks teeth to ensure it. This perhaps explains why one has not heard of many GI success stories in India.
The current Indian legal framework for GIs needs to be strengthened to address quality control and consumer expectations by insisting on multi-layered quality control systems as a precondition for registration. Other important issues faced by GI producer bodies are market access and funding for enforcement and marketing. Still a greenhorn in GI protection, India must hand-hold producer bodies, look at successful models elsewhere and mould these to suit the ground realities of protection and enforcement in a developing country.
Every region in India boasts of many locally produced unique goods and this law, with a few amendments to fill the serious missing gaps described above, coupled with diligent implementation can turn into a magic wand for the Make in India programme.
It it also imperative to realize that most of the local industries who are engaged in production of such GI products are invariably still in the MSME sector. Therefore before they can achieve economies of scale and contribute significantly to the Make in India program, we must ensure that proper training, skill development and an overall favorable environment (in terms of labour laws etc.) is provided. Laying greater emphasis on inspection, monitoring etc is of no use unless these producers are enabled to become more competent and produce world class products.