Define GI (Registration, Right & Protection)
Ques - Discuss the law relating to the meaning, prohibitions or
registration of certain Geographical Indication and registration of
homonymous geographical indication under the Geographical
Indication of Goods (Registration and Protection) Act, 1999. (20)
Ans. The issue under consideration in the present question requires
discussion on the meaning of them "Geographical Indication", registration of
Geographical Indication and registration of homonymous geographical
indication under the Geographical Indication of Goods (Registration and
Protection) Act, 1999.
Meaning of Geographical Indication
Section 2(e) of the Geographical Indications of Goods Act, 1999 defines
'geographical indication' in the following way: -
"geographical indication", in relation to goods, means an indication which
identifies such goods as agricultural goods, natural goods or manufactured
goods as originating, or manufactured in the territory of a country, or a
region or locality in that territory, where a given quality, reputation or other
characteristic of such goods is essentially attributable to its geographical
origin and in case where such goods are manufactured goods one of the
activities of either the production or of processing or preparation of the
goods concerned takes place in such territory, region or locality, as the case
may be. For e.g., Scotch whisky is unique to Scotland, and Feni is unique to
Goa.
Function Of GI
1. They Identify goods as originating in a particular territory or a region or
locality in that territory.
2. They suggest the consumers that the goods come from an area where
a given, quality, reputation or other characteristic of the goods is
essentially attributable t their geographic origin.
3. They promote the goods of producers of a particular area.
Registration of Geographical Indication
Section 8 provides that a geographical indication can be registered in respect
of any or all the goods comprised in a prescribed class of goods and in
respect of a definite territory of a country or a region or a locality.
Section 9 contains the grounds for prohibition of registration of Geographical
Indications in certain cases -
(i) deceive or cause confusion,
(ii) be contrary to any law for the time being in force,
(iii) comprises of contains scandalous or obscene matters, or
(iv) comprises of any matter likely to hurt the religious feelings of any class
or section of the citizens of India.
(v) be disentitled to protection in Court, or
(vi) be generic names or indications of goods, or
(vii) falsely represent to the persons that the goods originate in another
territory, region or locality.
Procedure for Registration of Geographical Indication ( sec 11)
Withdrawal of Acceptance [Section 12]
Advertisement of Application [Section 13]
Opposition to Registration [Section 14]
Registration [Section 16]
Registration of Homonymous Geographical Indications [Section 10]
Homonymous indications are those that appear or sound or alike but convey
different meanings. Section 10 of the GI Act, 1999 provides for registration of
homonymous geographical indications. Registration of homonymous
geographical indications for all types of goods is possible subject to certain
considerations. The conditions should be such that the consumers are not
misled and the producers concerned are treated equitably. This may be done
for example by limiting the linguistic versions if the languages spoken in the
territories concerned are not the same. This provision in the TRIPs
Agreement only applies to wines and spirits, but it has been enlarged to
include all other goods mentioned in our Act.
Conflict of Geographical Indications with Trademarks
Trademarks and geographical indications are intellectual property rights,
they are trade distinctive signs, but there are several differences between
them, especially concerning the legal regime and juridical nature.
A geographical indication is a generic description which is available to all
traders in a particular geographical location for goods that emanate from
that location. In contrary, a trademark is a sign which distinguishes the
products of a specific trade from those of its competitors, therefore it cannot
be descriptive and it cannot be generic.
The right to protect a geographical indication from wrongful appropriation is
enjoyed by all traders from the particular geographical location, whereas a
trademark is protected from wrongful appropriation at the suit of the
registered proprietor of that mark.
Geographical Indications right holders enjoys exclusive right and only
manufactures in specific areas can use Geography Indication marks.
Contrary, trademark owner has the exclusive right and only those who are
granted the right to use the trademarks can use the right.
Geographical Indication mark is not transferable while trademark is
transferable. Unlike Trademark, Geographical Indication Mark is also
permanent and will not fade away as time goes by. It will not become invalid
even if some manufactures stop using it, so it has lasting value.
Sec 25 of GI Act provides that registrar of trade marks shall, suo moto or at
the request of an interested party, refuse or invalidate the registration of a
trade mark which contain or consists of GI not originating in the territory of a
country, or a region or locality in that country which GI indicate. It should not
be registered if use of such GI in the trade mark for such good is of such
a nature as to confuse or mislead the persons as to the true place of origin of
such goods.
Section 26 Geographical Indications Act protects a trade mark which contains
or consists of a geographical indication which has been applied for or
registered in God faith under the trademarks law o where such trademarks
have been used in good faith before the commencement of the Act.
