TITLE OF THE PROJECT
“THE CASE OF DARJEELING TEA,INDIA”
By
Name of the Student: ASHIRBAD SAHOO
Roll No.: 19LLB082
Semester: V
Name of the Program: 5 year (B.A., LL.B.)
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY
NYAYAPRASTHA “, SABBAVARAM,
VISAKHAPATNAM – 531035, ANDHRA PRADESH
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ACKNOWLEDGEMENT
I have taken efforts in this project. However, it would not have been possible without the kind support and help of many individuals. I would like
to extend my sincere thanks to all of them.
I am highly indebted to Dr. K Sudha madam for her guidance and constant supervision as well as for providing necessary information regarding
the project & also for their support in completing the project.
I would like to express my gratitude towards my family for their kind co-operation and encouragement which help me in completion of this
project.
My thanks and appreciations also go to my friends in developing the project and people who have willingly helped me out with their abilities.
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Contents
INTRODUCTION........................................................................................................................................................................................................4
NEED FOR LEGAL PROTECTION OF GI...........................................................................................................................................................4
INTERNATIONAL PROTECTION FOR GI UNDER TRIPS...................................................................................................................................5
HISTORY OF THE TRIPS PROVISIONS ON GI.................................................................................................................................................5
THE INDIAN GI ACT.................................................................................................................................................................................................5
Registration..............................................................................................................................................................................................................6
Rights of Action Against Passing-Off......................................................................................................................................................................6
STATUS OF GI REGISTRATIONS IN INDIA......................................................................................................................................................6
CASE STUDY – DARJEELING TEA........................................................................................................................................................................6
History..........................................................................................................................................................................................................................6
Why Protect “Darjeeling Tea” as Geographical Indication.........................................................................................................................................7
Evolution of Legal Protection......................................................................................................................................................................................7
Enforcement Steps Taken by The Tea Board of India.............................................................................................................................................7
CONCLUSION............................................................................................................................................................................................................7
BIBLIOGRAPHY........................................................................................................................................................................................................8
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ABSTRACT
“Protection of Geographical Indication (GI) has, over the years, emerged as one of the most contentious IPR (Intellectual Property Rights) issues
in the realm of the WTO’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). TRIPS defines GI as any indication
that identifies a product as originating from a particular place, where a given quality, reputation or other characteristics of the product are
essentially attributable to its geographical origin. Also a geographical indication (GI) gives exclusive right to a region (town, province or
country) to use a name for a product with certain characteristics that corresponds to their specific location. The Geographical Indications of
Goods (Registration and Protection) Act, 1999 protect the GI’s in India. Registration of GI is not compulsory in India. If registered, it will afford
better legal protection to facilitate an action for infringement. Given its commercial potential, legal protection of GI assumes enormous
significance. Without suitable legal protection, the competitors who do not have any legitimate rights on the GI might ride free on its reputation.
Such unfair business practices result in loss of revenue for the genuine right-holders of the GI and also misleads consumers. Moreover, such
practices may eventually hamper the goodwill and reputation associated with the GI. An adequate legal protection is necessary for the protection
of legitimate right holders of Darjeeling tea from the dishonest business practices of various commercial entities. For instance, tea produced in
countries like Kenya, Sri Lanka or even Nepal has often been passed off around the world as ‘Darjeeling tea’. Appropriate legal protection of
this GI can go a long way in preventing such misuse. Without adequate GI protection both in the domestic and international arena it would be
difficult to prevent the misuse of Darjeeling Tea’s reputation, wherein tea produced elsewhere would also be sold under the Darjeeling brand,
causing damage to consumers and denying the premium price to Darjeeling tea industry. The industry is now waking up to the fact that unless
Darjeeling Tea is properly marketed and branded, the survival of the industry may be at stake and GI protection along with stringent
enforcement can go a long way in helping the industry to improve its financial situation.”
“Tea is India’s oldest industry in the organized manufacturing sector and has retained its position as the single largest employer in this sector.
Around 30 per cent of the world’s tea is produced in the country. India is also the world’s largest consumer of tea. However, on the export front
India is facing huge competition from other key tea producing countries, such as Kenya, Sri Lanka and China. ‘Darjeeling’ tea is a premium
quality tea produced in the hilly regions of the Darjeeling district West Bengal—a state in the eastern province of India. Among the teas grown
in India, Darjeeling tea offers distinctive characteristics of quality and flavour, and also a global reputation for more than a century. Broadly
speaking there are two factors which have contributed to such an exceptional and distinctive taste, namely geographical origin and processing.
The tea gardens are located at elevations of over 2000 meters above sea level. This study is an attempt to understand these issues in the context
of Darjeeling tea. Researcher will be expanding on the topic of Darjeeling tea, its history, its general significance; it’s cultural and economical
significance, its legal evolution and the enforcement steps taken by the tea board of India.”
RESEARCH QUESTION
1) What is the need for granting GI tags to various products?
2) What is the case of Darjeeling tea?
SIGNIFICANCE OF THE STUDY
This project will critically analyse the case of Darjeeling tea, India.
SCOPE OF THE STUDY
The scope of the study is limited to the study of the case of Darjeeling tea India.
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INTRODUCTION
“Geographical Indication (GI) protection has been one of the most controversial IPR (Intellectual Property Rights) issues in the WTO's
Agreement on Trade Related Aspects of Intellectual Property Rights throughout the years (TRIPS). TRIPS defines Geographical Indicator (GI)
as "any indication that identifies a product as coming from a certain location, where a given quality, reputation, or other factor is present."The
product's features are mostly determined by its geographical origin. A geographical indicator (GI) is also provided exclusive right to use a name
for a product with particular qualities that belongs to an area (town, province, or nation) their precise geographical location. In India, the
Geographical Indications of Goods (Registration and Protection) Act of 1999 safeguards GIs. In India, GI registration is not required. 1If it is
registered, it will provide stronger legal protection and make it easier to bring an infringement case.”
NEED FOR LEGAL PROTECTION OF GI
“The legal protection of GI is extremely important because of its business potential. Without adequate legal protection, rivals who do not have
any genuine rights to the GI's reputation may be able to ride roughshod over it. Such unethical commercial methods cause legitimate GI right
holders to lose money while also misleading customers. Furthermore, such actions may eventually tarnish the GI's goodwill and image.”
INTERNATIONAL PROTECTION FOR GI UNDER TRIPS
“TRIPS establish basic levels of protection at the international level, which WTO members must implement in their national legislation.
However, there is a hierarchy problem when it comes to the extent of GI protection under TRIPS. This is because, despite the fact that TRIPS
contains a single, identical definition for all GI, regardless of product categories, it mandates a two-tier system of protection: I basic protection
applicable to all GI in general (under Article 22), and (ii) additional protection applicable only to GI denominating wines and spirits (under
Article 23). (under Article 23).”
“This kind of protection is challenging, if Article 22 fails to provide sufficient intellectual property protection for the benefit of the genuine right-
holders of a GI. A producer not belonging to the geographical region indicated by a GI may use the indication as long as the product’s true origin
is indicated on the label, thereby free-riding on its reputation and goodwill.”
HISTORY OF THE TRIPS PROVISIONS ON GI
“The Uruguay Round of GATT talks began in 1986, at a critical juncture in India's development policymaking process. The Uruguay Round
discussions were well underway when India announced its huge economic reform package in 1991, signaling a paradigm shift in its policies.
This paved the way for Marrakesh in 1994 and the formation of the WTO. Given its lengthy history of inward-looking development strategy and
restrictive trade policy regime, India remained a cautious and relatively inactive player throughout the early years of the Uruguay Round
discussions.”
“India, on the other hand, wants to broaden the scope of 'geographical indication' (GI) protection beyond wine and spirits to include other goods
in Doha. A number of countries 2 sought to discuss extending this greater degree of protection to other items because they perceive it as a means
to boost marketing by better distinguishing their products from their competitors, and they object to other nations "usurping" their terms. Others
were against the initiative, and the argument centred on whether the Doha Declaration serves as a mandate for negotiations.”
“Those who oppose the expansion say that the current level of protection (Article 22) is sufficient 3. They warn that enhancing protection would
be inconvenient and would disrupt current lawful marketing activities. India, along with a slew of other like-minded countries, pushed for a
"extension" of Article 23's scope to include all types of products. Countries like the United States, Australia, New Zealand, Canada, Argentina,
Chile, Guatemala, and Uruguay, on the other hand, are staunch opponents of any 'extension.' The topic of 'extension' was a key component of the
Doha Work Programme (2001). However, as a result of the wide divergence of views among WTO members, not much progress has been
achieved in the negotiations and the same remains as an ‘outstanding implementation issue’.”
THE INDIAN GI ACT
“With the adoption of a legislation specifically dealing with the protection of GIs, India has created a one-of-a-kind system of GI [Link]
India, the Geographical Indications of Goods (Registration & Protection) Act and the Geographical Indications of Goods (Registration &
Protection) Act deal with the protection of [Link] 'Geographical Indications of Goods (Registration and Protection) Act, 1999' (GI Act) and the
'Geographical Indications of Goods (Registration and Protection) Rules, 2002' (GI Rules).India adopted its GI legislations in order to establish
1
The Geographical Indications of Goods (Registration and Protection) Act, 1999 - Section 22
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Bulgaria, the EU, Guinea, India, Jamaica, Kenya, Madagascar, Mauritius, Morocco, Pakistan, Romania, Sri Lanka, Switzerland, Thailand, Tunisia and Turkey.
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Argentina, Australia, Canada, Chile, Colombia, the Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, New Zealand, Panama, Paraguay, the Philippines,
ChineseTaipei and the United States.
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national intellectual property laws in accordance with the country's [Link] imposes duties. The federal government has created the
Geographical Indications Registry with all-India jurisdiction in Chennai, where right-holders can register their GI under the GI Act, which came
into force on September 15, 2003, along with the GI Rules.”
“The GI Act, unlike TRIPS4, does not limit itself to wines and spirits 5. Rather, it is up to the central government to decide whether items should
be given more protection. The drafters of the Indian Act purposefully used this method in order to provide GI of Indian origin with the same
level of protection as promised by the TRIPS Agreement. Other WTO members, on the other hand, are not required to provide Article 23-style
protection to all Indian GI, allowing the possibility of misuse in the international arena.”
“Section 1(3) (e) of the Indian GI Act 6 clarifies that any name that is not the name of a country, region, or locality of that country "shall" also be
considered a GI if it relates to a specific geographical area and is used on or in relation to specific goods originating from that country, region, or
locality, as the case may be. This clause allows emblems other than geographical names, such as 'Basmati,' to be protected.”
Registration
“While GI registration is not required in India, Section 20 (1) of the GI Act stipulates that no individual "shall" be allowed to bring a lawsuit to
prevent or recover damages for a "unregistered" GI. The right to seek redress for infringement61 is granted to the registered owner and
authorized users of a GI. According to Section 3(1) of the GI Act, the Registrar of GIs is the Controller-General of Patents, Designs, and Trade
Marks. Section 6(1) also requires the keeping of a GI Register, split into two parts: Part A and Part B. Part A contains information on the
registration of GIs, whereas Part B contains information on the registration of authorized users (Section 7 of the Act).”
“A GI may be registered in respect of any or all of the items that fall under the Registrar's classification of goods. For the purposes of GI
registration, the Registrar must categorize the products as closely as feasible in line with the International classification of commodities (Section
8 of the Act). A single application for registration of a GI for several classes of products may be filed, with a charge required for each class of
goods7.A GI can be registered for ten years in India, and it can be renewed for another ten years at any time 8. A registered GI is not subject to
transfer, transmission, license, pledge, mortgage, or any other arrangement under Indian law.”
Rights of Action Against Passing-Off
“Nothing under India's GI Act "must" be construed to prejudice rights of action against any person who passes off products as the goods of
another person, or the remedies available in such cases. In its most basic form, the passing-off principle asserts that no one has the right to pass
off his or her products as those of another. As a result, the primary goal of a passing off case is to safeguard a trader's or producer's name,
reputation, and goodwill against any improper attempt to profit from them. Despite the fact that India, like many other common law nations, has
legislation expressly dealing with unfair competition, the majority of such actions may be avoided by taking action against passing-off. Notably,
Article 24.3 of TRIPS expressly specifies that a Member is not obligated to reduce the protection of GIs that existed in that Member immediately
before to the date of entry while implementing the TRIPS rules on GIs. India has used this flexibility in the GI Act (Section 20(2)) to retain the
right of action against passing-off, which has long been a part of India's common law history, even before the TRIPS Agreement. ”
“Any litigation involving the infringement of a registered trademark or the passing of an unregistered trademark must be filed in a district court
with jurisdiction to hear the case. Section 66 of the Geographical Indications of Goods (Registration and Protection) Act, 1999 states that no
litigation may be brought in a court lower than a district court.”
STATUS OF GI REGISTRATIONS IN INDIA
“The GI Registry has now registered over 65 GIs of Indian ancestry. Darjeeling (tea), Pochampalli, Ikat (textiles), Chanderi (sarees),
Kancheepuram silk (textiles), Kashmir Pashmina (shawls), Kondapalli (toys), and Mysore are few of these GI (agarbattis).'Muga Silk' from
Assam, 'Madhubani paintings' from Bihar, 'Malabar pepper' and 'Alleppey Green Cardamom' from Kerala, 'Cora Cotton' from Tamil Nadu,
'Allahabad Surkha' from Uttar Pradesh, 'Nakshi Kantha' from West Bengal, and 'Monsooned Malabar Coffees' from Karnataka and Kerala were
among the GIs registered Many more Indian GIs are being considered for registration under the GI Act.”
CASE STUDY – DARJEELING TEA
“Tea is the oldest organized manufacturing business in India, and it continues to be the single greatest employment in the sector. The nation
produces around 30% of the world's tea. In addition, India is the world's largest tea drinker. However, India faces stiff competition from other
4
TRIPS AGREEMENT - Article 23
5
The Geographical Indications of Goods (Registration and protection) Act, 1999 – Section 2 (e)
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The Geographical Indications of Goods (Registration and Protection) Act, 1999- Section 21 (a)
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The Geographical Indications of Goods (Registration and Protection) Act, 1999- Section 11(3)
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The Geographical Indications of Goods (Registration and Protection) Act, 1999- Section 18 (1)
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major tea-producing countries such as Kenya, Sri Lanka, and China in terms of exports. Darjeeling tea is a high-quality tea grown in the
mountainous areas of West Bengal's Darjeeling district, in India's eastern division. Darjeeling tea, among the teas cultivated in India, has distinct
quality and flavor qualities, as well as a global reputation dating back over a century. In general, there are two aspects that have led to such a
unique and excellent flavor: geographical origin and processing. The tea gardens are situated at a height of more than 2000 metres above sea
level.”
History
“Darjeeling tea has a long history dating back to the 1840s, when India was a British territory. Before the British arrived, the Lepcha tribes lived
in the region's woods, which are now known as Darjeeling. A young British named Captain Lloyd recognised the possibilities of transforming
the location into a hill station or a sanitarium in 1828 while touring this region set against the snow-capped Himalayan range. Dr. A. Campbell, a
civil surgeon, was relocated from Kathmandu to Darjeeling in 1839 to become the first Superintendent of the Darjeeling district, a position he
held for the following twenty-two years9. Dr. Campbell imported China tea seedlings from the Kumaon highlands of North India in 1841 and
planted them near his home in his Beech wood garden in Darjeeling, which is 2134 metres above sea level. Following Dr. Campbell's
experimental tea nursery's success, the British government decided to establish tea nurseries across the region in 1847. Even after India gained
independence from British rule in 1947, many tea estates in Darjeeling remained under British control. The majority of Darjeeling's tea gardens
were owned by Indians by the end of the 1970s. The majority of Darjeeling tea is exported, with Japan, Russia, the United States, the United
Kingdom, and other European Union (EU) nations such as France, Germany, and the Netherlands 10 being the main importers. In February 2000,
the Indian Tea Act of 1953 was amended to include a mandatory method of verifying the authenticity of exported Darjeeling tea in order to
secure the supply of genuine Darjeeling tea. The system requires all Darjeeling tea merchants to engage into a license arrangement with the Tea
Board of India in exchange for an annual license fee.”
Why Protect “Darjeeling Tea” as Geographical Indication
“Legitimate Darjeeling tea right holders must be protected from the dishonest business activities of diverse commercial organizations by
sufficient legal protection. Tea from Kenya, Sri Lanka, and even Nepal has been mislabeled as 'Darjeeling tea' across the world. Appropriate
legal protection for this GI can go a long way toward avoiding this type of misappropriation.”
“Without adequate GI protection both domestically and internationally, it would be difficult to prevent the misappropriation of Darjeeling Tea's
reputation, where tea produced elsewhere would be sold under the Darjeeling brand, harming consumers and denying the Darjeeling tea industry
the premium price. The business is now realizing that unless Darjeeling Tea is effectively promoted and branded, the company's existence may
be jeopardized, that GI protection, coupled with strict enforcement, may go a long way toward assisting the sector in improving its financial
condition.”
Evolution of Legal Protection
“The Tea Board of India made the first attempt to preserve the 'Darjeeling' trademark in 1983, when the 'Darjeeling' emblem was established.
Under the Indian Trade and Merchandise Marks Act 1958, the Tea Board acquired domestic protection for the Darjeeling emblem as a certified
trade mark (now the Trade Marks Act, 1999). In 1986, the Tea Board was awarded registration in class 30 on behalf of the Tea Board. In the
same year, the logo was registered as a trademark in a number of additional countries [see Annexure A], including the United Kingdom, the
United States, Canada, Japan, Egypt, and Germany, Austria, Spain, France, Portugal, Italy, Switzerland, and the former Yugoslavia 11.”
“Due to the lack of a specific legislation dedicated solely to GIs in India at the time, the term 'Darjeeling' was additionally registered under class
30 under the Trade and Merchandise Marks Act 1958 in the name of the Tea Board in 1998. The Tea Board petitioned for Geographical
Indication protection of 'Darjeeling' in October 2003, after the Geographical Indication Act was passed in India in September [Link]
was awarded GI designation in India in October 2004, making it the first application to be recognized as a GI in India.”
Enforcement Steps Taken by The Tea Board of India
“The Tea Board has employed the services of Compumark, a World Wide Watch agency, since 1998 to prevent the misappropriation of the name
"Darjeeling" and the logo. All incidents of illegal usage and attempted registration 12 must be monitored by Compumark and reported to the Tea
Board. Several incidents of attempted registrations and unlawful use of the 'Darjeeling' and Darjeeling Logo have been recorded as a result of
9
Darjeeling Planters Association (1999), [Link]
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[Link]
11
Darjeeling Tea- Intellectual Property Rights of Darjeeling Tea in the age of globalization and world trade[Link]
12
[Link]
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Compumark's appointment. The tea board attempted to prohibit unlawful usage of the Darjeeling word/logo that had been brought to its
attention. [See Annexure B for more information.] Some Darjeeling tea conflicts have been resolved thanks to discussions between the Indian tea
board and international companies. Following legal notification and discussions by the Tea Board, Bulgari, Switzerland decided to remove the
legend 'Darjeeling Tea scent for men.' In the last four years, the Tea Board has battled infringement and abuse of the name Darjeeling Tea in
countries such as Russia, the United States, Japan, France, Germany, Israel, Norway, and Sri Lanka.”
CONCLUSION
“While the Tea Board has made progress in its pursuit of international trademark recognition for Darjeeling tea, international recognition of
Darjeeling tea as a geographical indicator remains elusive, owing to the fact that Article 23 of TRIPS provides good protection for wines and
spirits but not for other products. The lack of a multilateral system of notice and registration for products such as Darjeeling Tea, which is
accessible for wines and spirits, jeopardises proper international protection. It is critical that India seeks to extend GI protection to additional
goods by revising Article 23 of the TRIPS Agreement.”
BIBLIOGRAPHY
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