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1
GEOGRAPHICAL INDICATIONS
&
TRADITIONAL KNOWLEDGE
Project Assignment No. 1
P.G Diploma in Patents Law
Submitted by:
Reshmi Dutta
ID No. PLD482_08
2008-2009
NALSAR Proximate Education
NALSAR University of Law, Hyderabad
30th Nov, 2008
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GEOGRAPHICAL INDICATIONS & TRADITIONAL KNOWLEDGE
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TABLE OF CONTENTS
SL. NO TOPIC PAGE NO. 1 Introduction 4-5 2 Geographical Indications: Indian Scenario 6-9 3 Case Studies 10
3a. Basmati Rice 10-11 3b. Darjeeling Tea 12-16 3c. Pashmina Shawl 16-19 3d. Tirupati Laddu 19-20 3e. Turmeric 21-23 3f. Neem 24-27 4. Geographical Indications: a new destination
marketing mantra 27
5. Legal aspect of GI 28-30 6. GI infringement 30 7. Biopiracy 31-33 8. Traditional Knowledge Digital Library (TKDL) 33-37 9. Worldwide scenario 37
10. Conclusion 38 11. References 39
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Abstract:
“Every region has its name and fame. Qualities and characteristics of certain goods
attributable to some geographical locations and reputable to “as produce of certain
region” come under Geographical Indications. Geographical Indications is an emerging
trend in Intellectual Property. The present paper takes an overview of the current
scenario of Geographical Indications in India. It also provides a list of Geographical
Indications in India registered till 31st January 2006.”
INTRODUCTION
Intellectual property is the creation of human mind, human intellect and hence called “Intellectual property”. The
intellectual property is created by incorporating information intangible objects capable of multiplying in an unlimited
number of times at different locations any where in world. The property is basically in the concept, idea thought and
thereafter in the actual product work or process etc.
Intellectual property is usually divided into two branches
1. Patents, Designs, Trade Marks and Geographical Indications which is also termed
as “Industrial Property” and
2. Copyright and Neighboring Rights
GEOGRAPHICAL INDICATIONS
Every region has its claim to fame. Christopher Columbus sailed from Europe to chart out a new route to capture the
wealth of rich Indian spices. English breeders imported Arabian horses to sire Derby winners. China silk, Dhaka
Muslim, Venetian Glass all were much sought after treasures. Each reputation was carefully built up and
painstakingly maintained by the masters of that region, combining the best of Nature and Man, traditionally handed
over from one generation to the next for centuries. Gradually, a specific link between the goods and place of
production evolved resulting in growth of geographical indications.
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TRADE MARK AND GEOGRAPHICAL INDICATION
A trademark is a sign used by an enterprise to distinguish its goods and services from those of other enterprises. It
gives its owner the right to exclude others from using the trademark. A geographical indication tells consumers that a
product is produced in a certain place and has certain characteristics that are due to that place of production. It may
be used by all producers who make their products in the place designated by a geographical indication and whose
products share typical qualities.
BENEFITS OF REGISTRATION IN INDIA
• Confers legal protection to geographical indications in India.
• It prevents unauthorized use of a registered geographical Indication by others.
• It boosted exports of Indian geographical indications by providing legal protection.
APPLICATION FOR GEOGRAPHICAL INDICATION IN INDIA
Any association of persons, producers, organization or authority established by or under the law can apply:
• The applicant must represent the interest of the producers
• The application should be in writing in the prescribed form
• The application should be addressed to the Registrar of Geographical Indications along with prescribed fee.
VALIDITY FOR GEOGRAPHICAL INDICATIONS IN INDIA
The Registration of a Geographical Indication is for a period of ten Years. Renewal is possible for further periods of
10 years each. If a Registered geographical indication is not renewed, it is liable to be removed from the register
FILING AND GRANT OF GEOGRAPHICAL INDICATIONS IN INDIA
Various stages of filing and grant of Geographical Indications are explained below: The Register of Geographical
Indication is divided into two parts. Part ‘A’ consists of particulars relating to registered geographical indications and
part ‘B’ consists of particulars of the registered authorized users.
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INDIA AND GEOGRAPHICAL INDICATIONS ACT
An effective protection for GIs was of considerable importance for a country like India, which was richly endowed
with natural and agricultural products and which already had in its possession renowned geographical names such
as 'Darjeeling'(tea), 'Alphonso' (mango), 'Basmati' (rice), etc., there was no separate legislation on GIs until the
enactment of 'The Geographical Indications of Goods (Registration and Protection) Act, 1999' (henceforth the GI
Act).The tea from Kenya, Sri Lanka, have often been passed off around the world as ‘Darjeeling tea’, which
originally denotes the fine aromatic produce of the high-altitude areas of North-Bengal from where it derives the
name. Corporations in France and the US have been producing rice based on ‘Basmati’ varieties in those countries,
and registering trademarks that refer to ‘Basmati’, thereby seeking to gain from this renowned geographical name.
The US-patent on ‘Basmati Rice Lines and Grains’ granted to Texas based Rice Tec Inc, which triggered a lot of
controversy in the recent past, is a glaring example of wrongful exploitation of a renowned GI from India. So on
and so forth. It is in such a scenario, that the GI Act was enact formulated as part of the exercise in the country to set
in place national intellectual property laws in compliance with India’s obligations under the TRIPS Agreement.
Under this Act, which has come into force with effect from 15th September 2003, the Central Government has
established the ‘Geographical Indications Registry’ with all India jurisdictions at Chennai, where the right holders
can register their respective GIs. After a GI is registered any person claiming to be the producer of the good
designated by the registered GI can file an application for registration as an authorized user. The GI Act is to be
administered by the Controller General of Patents, Designs and Trade Marks- who is the Registrar of Geographical
Indications.
GUIDELINES FOR FILING OF GEOGRAPHICAL INDICATION APPLICATION
The purpose of this guideline is to give elementary information for filing of an application. The guidelines are subject
to requirements of the Act and Rules. An application for registration of a geographical indication is to be made in
writing using a replica of the official application Form GI-1 for the registration of a Geographical Indication in Part
A of the Register by an Indian applicant; Form GI-2 for a convention application; an application for goods falling in
different classes by an Indian applicant in Form GI-3 and an application for registration of goods falling in different
classes from a convention country in Form GI-4 along with prescribed fee and should be addressed to the “Registrar
of Geographical Indications”, Chennai. The application should include the various requirements and criteria for
processing a geographical application as specified in Rule 32(1).
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Table No. 1: REGISTRATION OF GEOGRAPHICAL INDICATIONS IN INDIA DURING 29.10.04 to
31.01.06
Sl. No GI PRODUCT STATE DATE OF REGISTRATION
1. Darjeeling Tea Tea West Bengal 29.10.04
2. Pochampally Ikat Textile Andhra Pradesh 31.12.04
3. Chanderi saree Textile Guna,MP 28.01.05
4. Kotpad Handloom fabric Textile Koraput,Orissa 02.06.05
5. Kota Doria Textile Kota,Rajasthan 05.07.05
6. Kancheepuram silk Textile Tamil Nadu 02.06.05
7. Bhavani Jamakkalam Textile,carpets Erode,Tamil Nadu 05.07.05
8. Mysore Agarbathi Incense sticks Mysore,Karnataka 02.06.05
9. Aranmula Kannadi Metal mirror Kerala 19.09.05
10. Salem Fabric Textile Tamil Nadu 19.09.05
11. Solapur Chaddar Textile Maharashtra 19.09.05
12. Solapur Terry Towel Textile Maharashtra 19.09.05
13. Mysore Silk Textile Karnataka 28.11.05
14. Kullu Shawl Textile Himachal Pradesh 12.12.05
15. Madurai Sungudi Textile Tamil Nadu 12.12.05
16. Kangra Tea Tea Himachal Pradesh 12.12.05
17. Coorg Orange Horticulture product Karnataka 30.01.06
18. Mysore Betel Leaf Horticulture product Karnataka 30.01.06
19. Nanjanagud Banana Horticulture product Karnataka 30.01.06
20. Mysore Sandalwood Oil Essential Oil Karnataka 30.01.06
21. Mysore Sandal Soap Soap Karnataka 30.01.06
22. Bidriware Handicrafts Texile Karnataka 30.01.06
23. Channapatna Toys & Dolls Handicrafts Karnataka 30.01.06
24. Coimbatore Wet Grinder Wet Grinder Tamil Nadu 30.01.06
25. Mysore Rosewood Inlay Handicrafts Tamil Nadu 30.01.06
26. Kasuti Embroidery Embroidery Karnataka 30.01.06
27. Mysore Traditional
Paintings
Paintings Karnataka 30.01.06
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Table No. 2: State Wise Distribution of Geographical Indications Registered in India
It has been observed from Table 2, that in India, the maximum i.e. 12 geographical indications are registered by
Karnataka forming 44.44% followed by 5 from Tamil Nadu with 18.52%.
Sl. No State No. of GI Percentage
1. West Bengal 1 3.70
2. Andhra Pradesh 1 3.70
3. Madhya Pradesh 1 3.70
4. Orissa 1 3.70
5. Rajasthan 1 3.70
6. Tamil Nadu 5 18.52
7. Karnataka 12 44.44
8. Kerala 1 3.70
9. Maharashtra 2 7.41
10. Himachal Pradesh 2 7.41
Total 27 100
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Table No. 3: Type of Product Wise Distribution of GIs Registered In India
The maximum GIs registered are from Textiles category i.e. 13forming 48.15% of the total registration followed by
Horticulture and Handicrafts with 11.11% each.
In India some of the examples of geographical indications are: # Basmati Rice
# Darjeeling Tea
# Kanchipuram Silk Saree
# Alphanso Mango
# Nagpur Orange
# Kolhapuri Chappal
# Bikaneri Bhujia
# Agra Petha
# Malabar pepper
Sl. No Type of product No. of GI registered Percentage
1. Tea 02 7.41
2. Textiles 13 48.15
3. Incense Sticks 01 3.7
4. Metal mirror 01 3.7
5. Horticulture Product 03 11.11
6. Essential Oil 01 3.7
7. Soap 01 3.7
8. Handicrafts 03 11.11
9. Wet Grinder 01 3.7
10. Painting 01 3.7
Total 27 100
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CASE STUDIES:
BASMATI RICE
Basmati rice is an example of indigenous knowledge that was patented elsewhere due to lack of registered
geographical indications. For instance, in USA the trademark 'Jasmati' was registered in November 1993 and
'kasmati' was registered in June, 1996. A patent (US Patent 5663404) entitled 'basmati rice lines and grains' having
20 claims, was also granted to RiceTec. In June 2000, Agriculture and Processed Food Products Export
Development Authority (APEDA), India challenged this patent at the US Patent and Trademark Office (USPTO). As
a result, in September, 2000, RiceTec withdrew 4 (of the 20) claims that dealt with the starch content, grain length,
chalkiness, 2-acetyl- 1-pyroline content and burst index. On March 27. 2001, the USPTO informed RiceTec that
only 3 of the 20 claims (pertaining to three specific rice plants namely BAS867, RT1117 and RT1121 that are not
cultivated in India) were allowed, thus suggesting that the 'basmati' battle was at least partly won by India.
Other IPR tools include 'trademarks' which are used for basmati (e.g. 'Kohinoor' or 'Lal Quila'). Unfortunately, India
and Pakistan took no steps to protect Basmati as GI, so that RiceTec has been selling its Basmati under the brand
names 'Texmati' and 'Kasmati' although in January 1999, RiceTec withdrew its trademark application filed in UK for
'Texmati'.
In the year 2001, three NGOs also filed a petition with US Federal Trade Commission (USFTC) to prohibit in USA,
the use of names 'Basmati' and 'Jasmati' for rice grown in USA. This petition was disallowed, on the ground that
Basmati and Jasmati were example of aromatic rough rice that were not limited to and did not misrepresent rice
grown in any particular country. This means that in the absence of any protection as GI, USFTC did not consider
Basmati as a distinctive product only from India and Pakistan. Thus, there are conflicting reports on the 'success' of
the Indian Government in protecting 'Basmati' from patent piracy. It has been argued that we would have better
chance of protecting 'Basmati', if the issue is raised concerning trademark and 'geographical indication' (GI), rather
than as a case of usurpation of patent rights.
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India can take this issue to the 'Dispute Settlement Body' (DSB) of WTO on the basis of trademark infringement,
since a trademark can be used only with the approval of the "original owner" as provided for in the "US Omnibus
Appropriation' Act of 1998".
Unfortunately, Basmati trademark for a particular Indian rice is not protected in India, while Jasmati and Kasmati are
the registered trademarks in USA. However the provisions of 'Paris Convention' (India and USA both are signatories
of this convention) which directs countries to refuse or cancel registration of trademark, if it is a reproduction,
imitation or translation of a well-known trademark (earlier used) as in case of RiceTec's BAS867. Therefore, if the
ownership of trademark is based on prior usage rather than registration as GI, India will have an edge in winning the
dispute, if and when the issue is taken up with DSB of WTO. Articles 8 and 16.1 of TRIPS also deal with the same
issue.
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DARJEELING TEA
What is Darjeeling Tea?
According to Darjeeling Planters Association, "Darjeeling Tea is the World’s most expensive and exotically flavoured tea. Connoisseurs will assert that without Darjeeling, Tea would be like Wine without the prestige of Champagne".
The Darjeeling Planters Association writes in that according to the Tea Board Of India - "Darjeeling Tea" means:
tea which has been cultivated, grown, produced, manufactured and processed in tea gardens (current schedule whereof is attached hereto) in the hilly areas of Sadar Sub-Division, only hilly areas of Kalimpong Sub-Division comprising of Samabeong Tea Estate, Ambiok Tea Estate, Mission Hill Tea Estate and Kumai Tea Estate and Kurseong Sub-Division excluding the areas in jurisdiction list 20,21,23,24,29,31 and 33 comprising Subtiguri Sub-Division of New Chumta Tea Estate, Simulbari and Marionbari Tea Estate of Kurseong Police Station in Kurseong Sub-Division of the District of Darjeeling in the State of West Bengal, India.
tea which has been processed and manufactured in a factory located in the aforesaid area.
which, when brewed, has a distinctive, naturally occurring aroma and taste with light tea liquour and the infused leaf of which has a distinctive fragrance.
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Present Scenario
"Today there are 86 running gardens producing ‘Darjeeling Tea’ on a total area of 19,000 hectares. The total
production ranges from 10 to 11 million kgs annually. "The Darjeeling tea industry at present employs over 52
thousand people on a permanent basis, while a further 15,000 persons are engaged during the plucking season which
lasts from March to November. A unique feature of this work force is that more than 60 percent are women and the
employment is on a family basis." A major part of the annual production of Darjeeling tea is exported. The key
buyers of Darjeeling tea are Germany, Japan, U.K., U.S.A. and other E.U. countries such as the Netherlands,
France, etc. In the year 2000 about 8.5 Million Kilograms of Darjeeling tea was exported, amounting to a total value
of USD 30 Million.
Tea Board and the Darjeeling Planters Association have been involved at various levels in protecting this common
heritage. The protection is essentially geared to:
prevent misuse of the word "Darjeeling" for other types of tea sold world-wide
deliver the authentic product to the consumer
enable the commercial benefit of the equity of the brand to reach the Indian industry and hence the plantation
worker
achieve international status similar to Champagne or Scotch Whisky both in terms of brand equity and
governance/administration
Tea Board of India and its intellectual properties
"All teas produced in the tea growing areas of India are administered by the Tea Board of India under the Tea Act,
1953. The functions of the Tea Board are, amongst other things, to regulate the production and cultivation of Indian
tea, to improve the quality of Indian tea and to improve the marketing of Indian tea within India and abroad.
"The objective of the Tea Board, under the Darjeeling Certification Trade Mark Protection Scheme, is to put in
place a mechanism to ensure the supply chain integrity for DARJEELING tea so that the tea leaving the shores of
India and claimed as 'DARJEELING' tea worldwide is truly a genuine Darjeeling tea. For fair and competitive
marketing of Indian tea in the international markets, the Tea Board has been administering its intellectual properties
(Logos) which are as under:
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The three above marks are widely known as Speciality Tea Logos of the Board indicative of the geographical origin
of produce. These Speciality Tea Logos are also known as Certification Trade Marks (CTM) of the Board. The CTM
Logos have been registered under Trademark Laws of various international jurisdictions. Several users of these logos
are permitted by the Tea Board to use these in the course of their tea trade as marks of origin.
Statutory Protection
Domestic
The Darjeeling logo created in 1983 has since been registered in various jurisdictions including UK, USA, Canada,
Japan, and Egypt and some European countries as a Trade mark/ Certification Trade Mark/Collective Mark. Since
February 2000, the statutorily compulsory system of certifying the authenticity of the Darjeeling tea being exported
was put in place under the provisions of the Tea Act, 1953. The system requires all dealers in Darjeeling tea to
compulsorily enter into a license agreement with the Tea Board India and pay an annual license fee. The terms and
conditions of the Agreement provide that the licensees would furnish information relating to production, manufacture
and sale of Darjeeling tea through auction or otherwise. The Tea Board is thus able to compute and compile the total
volume of Darjeeling tea produced and sold in any given same period. No blending whatsoever with teas of other
origin is permitted.
Under this authentication process, 171 companies dealing with Darjeeling tea have registered with the Tea Board.
Out of 171, 74 are producer companies and 97 are trader/exporter companies. Certificates of Origin are then issued
for export consignments. Data is entered from the garden invoices (the first point of movement outside the factory)
into a database, and export of each consignment of Darjeeling tea is authenticated by issue of the Certificates of
Origin by crosschecking the details. This ensures the supply-chain integrity of Darjeeling tea until consignments
leave the shores of India. The Customs authorities in India have, by officially issued instructions, instructed all
Customs checkpoints to check for and ensure that Certificates of Origin accompany Darjeeling Tea consignments.
The Tea Board has also sought the support of all overseas buyers, sellers and Tea Councils and Associations in so
much as they should insist that Certificates of Origin accompany all export consignments of Darjeeling tea. Overseas
importers are thus ensured of 100% authentic Darjeeling tea in all their consignments.
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International
In addition to the above, the Tea Board is also in the process of putting in place additional applications for
"Darjeeling" and/or Darjeeling logo as certification mark/collective mark in Australia, Canada, Germany and a
number of other countries. Products like Darjeeling Tea, Columbian Coffee etc., which are clearly associated with a
specific geographical region, are still not acknowledged by the WTO to be Geographical Indicators according to the
TRIPS agreement.
Overseas, the Darjeeling logo and word are registered or applied for registration under the relevant laws available in
the country where registration is sought. The present position of international registration of Darjeeling and
Darjeeling logo is summarized in the Table below.
NO. COUNTRY NATURE AND
SUBJECT MATTER
OF REGISTRATION
REGISTRATION
NO.
VALIDITY
1. Canada Certification Mark 0903697 Valid until voluntarily
abandoned or
expunged pursuant to
a court order.
2. Egypt Trade Mark 103072 April, 2009
3. International Registration–
Germany, Austria, Spain,
France, Portugal, Italy,
Switzerland and former
Yugoslavia.
Collective Mark 528696 September, 2007.
4 Benelux registration – Belgium,
Netherlands, Luxembourg
Collective Mark 444511 March 2007
5. India Certification Mark for
DARJEELING logo
532240 October 9, 2007
6. India Certification Mark for
DARJEELING (word)
831599 December 10, 2005
7. Japan Trade Mark for the
DARJEELING logo
2153713 July, 2007
8. U.K. Certification Mark for
the Darjeeling logo
1307518 April, 2008
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9. U.K. Certification Mark for
Darjeeling (word).
2162741 March 30, 2008
10. U.S.A. Certification Mark
Darjeeling logo
1632726 January, 2007
11. U.S.A. Certification Mark for
Darjeeling word per se.
2685923 October 1, 2012
12 Russia Darjeeling logo
Darjeeling word
Pending application
dated April 1999.
Word recently
accepted for
registration.
PASHMINA SHAWL
Delicate artistry: The fine, soft and unique Pashmina is entirely hand-made.
Spun from the fleece of Pashmina goat Capra Hircus found in Himalayas, Kashmir boasts of producing the finest
quality of Pashmina through a tedious manual process that originated here. No wonder that Pashmina and its
variants became popular in the West as Cashmere, a name inspired by Kashmir. Pashmina is one of the most
delicate, soft and costliest wools on the planet after Shahtoosh. As the Shahtoosh wool has been banned worldwide
owing to the illegal poaching of the Chiru goats, Pashmina demand has skyrocketed, prompting many traders to
indulge in fake and machine-made Pashmina trade. Pashmina has a huge market potential globally.
Amidst all the strife in Kashmir, the region’s handicrafts have now emerged as the new bone of contention between
India and Pakistan. The Indian government has been trying to get the Geographical Indicator (GI) patent for some of
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the finest Kashmiri handicrafts, but these efforts are being blocked by Pakistan, which says it too has a say on the
issue.
In March 2006, the Craft Development Institute (CDI) in Srinagar had filed an application for GI patent with the
Chennai-based GI registry. But the Rawalpindi Chamber of Commerce and Industries (RCCI) in Pakistan opposed
the move by citing the existence of similar handicrafts in Pakistan-occupied Kashmir (PoK). “We had applied for a
Geographical Indicator patent for Kashmir Pashmina, Kashmir Sozni embroidery and Kashmir Kani shawl,” says
Muhammad Shariq Farooqi, Director, CDI Srinagar. “But before we could get the coveted titles, a Pakistan-based
business body filed objections against our application.”
A GI patent gives exclusive rights over a label to a specified product produced in a specified geographical region.
Before granting the patent, the GI registry usually publishes the matter in its journal, inviting objections, if any, from
all around the world in this regard. With Kashmir Pashmina being the major handicraft of the three, it has assumed
the central role in the controversy. According to RCCI objections, CDI cannot get the patent for Kashmir Pashmina
and other handicrafts because these are also produced by the PoK artisans. It has cited the Gilgit Baltistan region as
the main centre of Pashmina production in PoK. RCCI also claims that if India gets the patent for Kashmir Pashmina
and other handicrafts in the international market, then it will render the same trade in PoK illegal.
The CDI on its part is readying its set of counter-objections. Stating that the Pashmina produced in Jammu and
Kashmir is far better than that produced in PoK,. While businessmen see the whole issue as politically motivated,
experts say the process is likely to be long drawn-out owing to the verification, survey, counter-objections and other
procedures involved.
Fighting for exclusivity
China, which is the world’s largest producer of Cashmere wool, also passes most of its wool under the name of
Pashmina and this is giving jitters to traders in Kashmir. Union Minister for Commerce Jairam Ramesh had during
his visit to Srinagar recently confirmed that the patent for Kashmir Pashmina and Sozni would take time as they have
encountered objections from Pakistan. “Kashmir Pashmina and Kashmir Sozni would take time as we are
encountering objections from Pakistan-based business bodies in this regard,” he said.
There are around 50,000 people associated with the Pashmina trade, including nomads, weavers, spinners, artisans,
washers etc. The annual trade in shawls in Kashmir is estimated to be around Rs 550 crore; with the patent in hand
this income is expected to multiply several times over.
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Why a Kashmir artisan body opposed Pashmina patent
Efforts to secure a Geographical Indicator (GI) patent for Kashmir Pashmina fell into rough weather with
opposition from a Pakistan based trade body, and an artisan body from Indian administered Kashmir. While the
Pakistan body insists for inclusion of Pashmina products from Pakistan administered Kashmir, the Srinagar
based body of artisans says the patent application is flawed.
Srinagar, March 01, 2008: Although many countries including China, Nepal, Pakistan, and Australia produce
Cashmere or Pashmina today, experts say Kashmir's traditional product is still the best. What is more, brand
Kashmir, built over hundreds of years, is what sells. However, Kashmir's Pashmina industry has benefited little from
its name and finds it hard to compete with lower priced products and fakes from other regions.
"For a customer it is difficult to find what is real and what is fine, especially when everything is sold under the
same name. So the finest Pashmina which is expensive has to give in to a lower quality product sold cheaply
under the same label," says Bashir Ahmad Bhat, a handicrafts dealer in Srinagar, the summer capital of
Indian administered Kashmir. Srinagar has for centuries been the centre of Pashmina weaving and spinning.
Pashmina has become a generic name. Nepal says it is producing Pashmina, China says it is producing Pashmina.
India should have protected the name earlier. A lack of standardised specifications makes a patent more important.
In the north Indian city Amritsar, for example, many fakes and low quality products are sold as Pashmina.
In August 2006 the patent registry based in the south Indian city of Chennai admitted the application from CDI. It
met opposition from the Pakistan based Rawalpindi Chamber of Commerce, and from a Srinagar based artisan body,
Kashmir Handmade Pashmina Promotion Trust (KHPPT). Though its objections to two of the three patent
applications reached late, the Pakistani body asks for inclusion of products from Pakistan administered Kashmir in
the patent. "Their objections to Sozni Embroidery have reached in time and we have been notified of that. However
we have heard the registry has written to Rawalpindi Chamber asking for reasons for being late."
Handmade vs. machine-made
The KHPPT is a body of Pashmina weavers in Srinagar, most of them previously Shahtooh weavers, backed by an
NGO Wildife Trust of India (WTI). KHPPT says CDI's patent application is flawed in many respects:
• Ashfaq Ahmad Matoo, a member of WTI and a spokesman for the KHPPT says that, in the first place, under
GI rules a patent can go only to a body of concerned artisans and not to a government institute unconcerned
with the trade.
• Plus the KHPPT is asking for inclusion of hand spun Pashmina yarn and not just the shawl in the patent,
besides exclusion of machine made products.
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• "It is only in Kashmir that the yarn is spun by hand. In all other places it is mechanised. The quality of that
yarn is so fine, that sometimes it cannot be seen by a naked eye. It is this yarn which takes our product to a
different level altogether," Matoo explains.
• He however thinks that exclusion of machine made products may face objections from industry as it means
traders cannot meet big orders in time. The machine intervention enhances production capacity but makes
compromises on quality.
KHPPT however is adamant and wants no compromise on the quality.
The catch, in fact lies in the quality of the final product.
Ghulam Muhammad Malla, a Pashmina weaver in Srinagar says that the fine handspun yarn is too delicate for a
machine. The artisans handle the delicate yarn with utmost care as they weave it into a shawl. The weavers have also
been hit by the sub standard products.
"Our wages have fell drastically because of machine made products coming from Amritsar. Also now the Amritsar
yarn which is not Pashmina is being brought here and woven here, and passed off as Kashmiri product," says Malla.
Improving the lot of artisans who unlike traders live on small wages is the next challenge after the patent.
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TIRUPATI LADDU
Tirupati Laddu to get Patented April 4, 2008
The famous and tasty Tirupati Laddu may soon get a patent of its own! The TTD (Tirumala Tirupati Devasthanams
- the temple’s executive board) is thinking of applying for a patent for the Laddu that is served as prasadam (holy
offering) at the temple town of Tirupati. The laddu is one of the most popular thing about Tirupati and for many
people, eating the laddu is as good as having a glimpse of the Lord himself. And of course, it is yummy and tasty
too!
Its popularity and demand have given rise to a humongous black-marketing network that is prevalent in Tirupati and
there have been cases of counterfeit laddus being palmed off as the real ones, that too at exorbitant prices -
sometimes as high as 100 bucks for a laddu! To check that and also to protect the Intellectual Property on account
of its Geographical Indication, the laddu and its preparation method is to be patented.
The sacred Tirupati laddu, for which tens of thousands queue and jostle every day, is set to go global as soon as it
receives a patent from the Registry of Geographical Indications (GI), Chennai. The Tirupati Tirumala Devasthanam,
which runs the temple, says there is a worldwide demand among Lord Venkateshwara’s devotees for the laddu,
which has fallen prey to blackmarketeers and counterfeiters even at Tirupati. Some 1.5 lakh laddus are made every
day at the temple, with one given free to each of the 50,000 pilgrims who come for a darshan. Each is allowed to
buy two more, at Rs 10 per laddu. The price is doubled if made on demand from VIPs. A temple official said: “The
demand is so high that revenue from the laddus has been soaring every year. It was Rs 75 crore in 2006, Rs 103
crore in 2007, and is estimated to be Rs 125 crore this year.”
The 100gm laddus are prepared by the archakas (hereditary temple priests) in the potu (kitchen) of the temple in
keeping with a tradition said to be 200 to 300 years old. A super-sized variety called Kalyana laddu weighs
500gm.The ingredients — besan, sugar, ghee, cardamom, raisins and cashew nuts — are bought from the auction at
the Commodities and Spices Exchange in Kochi, and lifted into the kitchen by crane.
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Despite close monitoring, blackmarketeers stand in queue for the laddus, often creating a shortage, and sell them to
devotees at a higher price in the town guesthouses.
The application for a geographical indication — a patented brand name that carries the name of the place where a
product is made — was cleared by a national-level experts committee. If the GI Registry gives its nod, the “Tirupati
Laddu” will be globally recognised on a par with brands like the Bikaner Bhujia, Agra Petha or Kolhapuri Chappals.
V. Natarajan, assistant registrar at the GI Registry, said the Devasthanam application would be taken up soon and the
process completed by August.
Devasthanam executive officer K.V. Ramanachari said the gold coin made in Tirupati, from 5-20gm of the pure
metal, too has been sent for a GI.Temple officials said they planned to apply for GIs for several other temple
products, such as the daddojanam (special curd rice), pongali (a dish made with rice, dal and ghee) and sweet pongal.
TUMERIC & SPICES
Turmeric is a tropical herb grown in East India, and the powdered product made from the rhizomes of its flowers has
several popular uses worldwide. Turmeric powder, which has a distinctive deep yellow color and bitter taste, is used
as a dye, a cooking ingredient, and litmus in a chemical test, and has medicinal uses as well. In the mid-1990s, this
product became the subject of a patent dispute with important ramifications for international trade law. A U.S. patent
on turmeric was awarded to the University of Mississippi Medical Center in 1995, specifically for the "use of
turmeric in wound healing." This patent also granted them the exclusive right to sell and distribute turmeric. Two
years later, a complaint was filed by India's Council of Scientific and Industrial Research, which challenged the
novelty of the University's "discovery," and the U.S. patent office investigated the validity of this patent. In India,
where turmeric has been used medicinally for thousands of years, concerns grew about the economically and socially
damaging impact of this legal "biopiracy." In 1997, the patent was revoked. But for two years the patent on turmeric
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had stood, although the process was non-novel and had in fact been traditionally practiced in India for thousands of
years, as was eventually proven by ancient Sanskrit writings that documented turmeric’s extensive and varied use
throughout India’s history. Many developing countries are concerned that the globalization of intellectual property
rights under the WTO's TRIPs agreement, and the negative consequences it has for traditional indigenous knowledge
and biodiversity.
Description
This case study will investigate two interrelated issues highlighted by the turmeric dispute. First, there is the specific
issue of whether the use of turmeric in wound healing should have qualified as a patentable U.S. product - whether it
meets the legal criteria of "Novelty, Non-Obviousness, and Utility" - and what India's rights should be with regard to
trading the herb bilaterally. There are alleged weaknesses in U.S. patent law that discriminate against developing
countries by failing to recognize products like turmeric as "non-novel," despite the fact that this medicinal plant and
other traditional agro-chemicals have been used in healing for thousands of years. Secondly, there is the problem of
international intellectual property rights law. World Trade Organization rules largely mimic and support the U.S.-
style patent system, and as a result, they reflect the same biases and pose a threat to the sanctity of indigenous
knowledge. The WTO TRIPs agreement, specifically, has led to a cry for reform from developing countries that
consider this "biopiracy" a threat to their economies and their biodiversity. Some activists charge that the WTO
should retreat entirely from intellectual property rights enforcement. Reform advocates consider it the WTO's duty to
protect indigenous knowledge from foreign patents, so that the dispute process can be accessible and universal.
Scientists and academics in India have been some of the most vocal critics of the WTO's brand of intellectual
property rights enforcement. As an ecologically biodiverse country struggling to emerge from poverty by integrating
itself in the world's trade regime, India has much to be gained from such reform, as it would likely lead to the
revocation of U.S. patents on many other Indian products (like Neem, Amla, Jar Amla, Anar, Salai, Dudhi,
Gulmendhi, Bagbherenda, Karela, Rangoon-ki-bel, Erand, Vilayetishisham, Chamkura). Developing countries
increasingly sees biopiracy as a significant issue that urgently needs to be addressed. Since many of these countries
are heavens of biodiversity and rely economically on their ability to export indigenous products and processes, they
see the rising importance of protecting their traditional knowledge from unjustifiable foreign patenting. After all, as
Suvira Srivastava quips, “Knowledge is the global currency for the 21st century.”
Discourse and Status:
The general discourse of the bilateral turmeric dispute is of non-agreement, and involved a legal proceeding. The
case, however, was resolved, with the court ruling that the U.S. patent be revoked for the "use of turmeric in wound
healing."
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Forum and Scope:
Forum: U.S. Government
Scope: UNILATERAL
Number of Parties Affected: 1
The only sovereign state affected in the case was the United States, whose courts presided over the legal proceedings
and whose Patent Office was forced to revoke the turmeric patent. India as a state was not involved, though it’s
Council of Scientific and Industrial Research, which is partly government-funded, was responsible for challenging
the U.S. patent. In another sense, citizens of all WTO member countries were legally affected by the decision in that
they regained respect to their rights to use turmeric in wound healing without paying royalties in some form to the
University of Mississipi Medical Center, as they would have been required to do under the TRIPs agreement.
Industry Sector: Pharmaceutical
Turmeric has medical uses, as indicated in this case study, but the product is best classified in the agricultural sector.
It is used in cooking as well, and therefore could easily be classified under the Standard Industrial Code FOOD, but
PHARMACEUTICAL has been indicated because this study concerns a medical use of turmeric.
Exporters and Importers:
The leading countries in turmeric trade are listed below.
Due to the specificity of this agricultural product, following lists were not compiled based on any hard numbers from
statistical trade databases. The countries listed were repeatedly referred to in a wide range of readings as chief
producers or major importers of turmeric.
Top exporters:
• India (largest exporter of spices)
• Thailand and other Southeast Asian countries
• Various Pacific islands
• Central and Latin American countries
• Taiwan
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Top importers:
• Japan
• Sri Lanka
• Iran
• North African countries
• Middle Eastern countries
• Ethiopia
• United States
• United Kingdom
The first five importers listed - Japan, Sri Lanka, Iran, and the regions of the Middle East and North Africa,
represent 75% of all turmeric imports.
THE NEEM TREE
The United States and India are currently involved in a biopiracy dispute over the rights to a tree indigenous to the
Indian subcontinent, the neem tree. While the neem tree has been used in India for over 2000 years for various
purposes such as pesticides, spermicides and toothbrushes, a US company has been suing Indian companies for
producing the emulsion because they have a patent on the process. The dispute is over the rights of companies to
conduct research and development by using patents against the interest of the people who live at the source of the
resource. To what extent can multinational companies claim and patent resources from the developing countries, like
India? The movement around the issue of the neem tree and trade-related aspects of intellectual property rights
(TRIPS) represents a challenge to the developing countries.
Description / Traits
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There are approximately 14 million neem trees (Azadirachta indica) in India. Access to neem products was very
cheap (if not free) and easy to get. It is a tropical evergreen, related to the mahogany, which mainly grows in arid
regions of India and Burma and Southwest Asia and West Africa. When temperatures do not drop below freezing, it
may grow up to 50 feet tall. They are estimated to live up to 200 years.
The neem tree has many versatile traits that can be traced back to the Upavanavinod, an ancient Sanskrit treatise
dealing with agriculture. This treatise cites the neem tree as a cure for ailing soil, plants and livestock. The tree has
been referred to as the 'curer of all ailments' and the 'blessed tree' by both the Hindu and Muslim population in India.
The leaves and the bark have been used to treat illnesses such as leprosy, ulcers, diabetes and skin disorder. It has
also been used to make spermicides and pesticides. The neem tree is known as the tree for all seasons because of its
versatility. Making pesticides emulsion does not take highly sophisticated equipment, as native peoples have been
making it for over 2000 years. Indians have developed their own process of cracking off the top that would then be
used on plants as a pesticide. Neem based pesticides, medicines and cosmetics have been produced by some
laboratories in India, but there has not been an attempt to make ownership of the formula legal because Indian law
does not allow agricultural and medicinal products to be patented.
In 1971, a timber company in the United States figured out that the neem tree's usefulness in acting as a pesticide and
began planting neem tree seeds. He received a patent on it and, in 1988, sold the patent to the US based company
W.R. Grace. In 1992, W.R. Grace secured its rights to the formula that used the emulsion from the Neem tree's seeds
to make a powerful pesticide. It also began suing Indian companies for making the emulsion.
The controversy over who has the rights to the Neem tree raised many questions. India claims that what the US
Companies are calling discoveries are the actual stealing and pirating of the indigenous practices and knowledge of
its people. The Indians and members of the Green Party in the European Union oppose big businesses owning the
rights to living organisms, otherwise known as biopiracy, because they believe that the rights of poor farmers in
developing countries will be harmed.
Dispute
There is an increasing awareness in India of the commoditization of neem will lead to the expropriation by
multinational corporations, like W.R. Grace (Shiva, Vandana "Piracy by Patent: The Case of the Neem Tree," in The
Case of the Global Economy: and for a turn toward the local, edited by Jerry Mander and Edward Goldsmith, Sierra
Club: San Francisco, 1996, p. 154). On Indian Independence Day in 1995, farmers in from Karnataka rallied outside
the district office to challenge the demands made by multinational corporations for intellectual property rights. As
part of their protest, the farmers carried twigs and branches from the neem tree as a symbol of their collective
indigenous knowledge of the properties of the neem.
The United States, on the other hand, states that what they are doing will help the Indian economy. India is not
against sharing its information about the Neem tree's virtues, but it is against countries and corporations that intend to
stop India's present use of it.
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Another issue is whether the neem tree is patenable, since it is a product of nature, which shows that it is not a result
of innovation and discovery. The problem is that W.R. Grace does not have a patent on the tree itself, but rather on
the process of making the emulsion. They believe that this process is a discovery because it entails manipulation
yielding greater and better results. In other words, discovery seems to have both old and new definitions. The
problem is over the use of novel scientific advances on traditional Indian techniques.
The World Trade Organization (WTO) is asking developing countries to open up to foreign direct investment from
abroad and to liberalize their trade policies. There has been a restructuring of General Agreement on Tariffs and
Trade (GATT) into the WTO. This resulted in agreements on trade-related aspects of intellectual property rights
(TRIPS) made during the Uruguay Round. These agreements created a trend towards a legal framework for
intellectual property rights including a consensus to follow and establish patent laws in conjunction with those of the
developed world.
While this can be seen as a good sign for India, it still causes a problem because of the Indian government's
reluctance to issue patents on agricultural and pharmaceutical product. Also, there is a lack of knowledge of the legal
process that surrounds intellectual property rights. Indian business owners argue that the lack of patents leads their
technology to move to the developed world. India feels that by letting foreign companies control resources, they
become more vulnerable to them. As a result, there has been a backlash on foreign investment and less joint ventures
between India and the United States.
Trade Measures
The trade measures that are most relevant to the neem tree case are intellectual property and patents. United States
patents on neem tree products are seen as forms of "biopiracy" by the country of India, the Green Party and the
European Patent Office. There are three main issues surrounding the patenting of local products used for medicinal or
agricultural purposes by the United States. First, the farmers will no longer be able to use these products without
paying royalties to the company that has a patent on it. Secondly, consumers will be deprived of cheap medicines and
agricultural products.
Patents on neem
U.S. Companies patents: The patents granted to W.R. Grace for extraction and storage processes are the most
controversial.
• US patent No 4946681 - granted in 1990 for improving the storage stability of neem seed extracts containing
azadirachtin (a naturally occurring substance that belongs to an organic molecule class called tetraortritenoids.
Azadirachtin occurs in all parts of the neem tree but the majority of it is concentrated in the neem kernal. It is one of
more than 70 limanoids produced by neem). The inventor is named as James F Walter of Ashton, Maryland.
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•
• US patent No 5124349 - granted in 1994 for storage of stable insecticidal composition comprising neem
seed extract. The major contribution was increasing the shelf-life stability of azadirachtin solution. (Four people are
named as the inventors).
Recent Indian patents:
• 70/Bom/91 - 13.3.91 (171888) - A process for treating (Upgrading) Neem Oil -Hindustan Lever Ltd.
Bombay, India
• 668/Mas/93 -23.9.93 - A combination of hydroponicum and a spray to improve the survival of tissue
cultured plants with specific references to Neem - Dalmia Cantre for Biotechnology
• 757/Del/93 - 20.7.93 Preparation of edible Neem oil - Rohm and Haas Co.
• 758/Del/93 - 20.7.93 Stable extract from neem oil - Rohm and Hass Co.
• 759/Del/93 - 20.7.93 Preparation of neem seed extract - Rohm and Haas Co.
• 1270,1271,1272 & 1273/Del/93 -12.11.93 A process for preparation of a spermicidal agent from neem oil or
extractives - National Research Development Corporation.
• 7/Mas/94 - 7-1-94 - A method for preparing ayurvedic antivirus compound comprising three oils mainly
neem seed oil - Girivas Vishwanath Seth.
• 9/Mas/94 - 10-1-94 - Nimbecidine - Vegetable oil including neem oil, enriched with azadirachtin and the
same extracted from neem seed and other parts of neem. T. Stanes and Company Ltd.
• 1397/Del/93 - 9.12.93 - A method for producing azadirachtin - Rohm and Haas Co.
GI: a new destination marketing mantra
What is common to Basmati rice, Darjeeling tea, Kanchipuram Silk saree, Alphonso mango, Kolhapuri chappal &
Bikaneri bhujia? Answer - these are all Indian products or produce closely associated with a particular place and are
all patent protected as Geographic Indications (GI). Which means chappals made other than in Kolhapur or Silk
sarees made outside Kancheepuram cannot pass themselves of as the real thing. Now, what does this have to do with
tourism?Destination marketing in tourism is about building an exciting “story” around a destination that promises
every visitor a unique perspective. For instance, the Napa Valley Vineyard tours in California (incidentally Napa
Valley Wines are GI protected). India with its plethora of current & possible GIs offers an almost unending source of
unique & interesting options for destination marketing. How about an Aphonso train, that goes along the southern
coast of Maharastha through the verdant land of the Aphono mango? Or maybe a school for Bikaneri bhujia, with
cooking classes, rajasthani history movies and vists to the market?
Note: http://harinair.wordpress.com/2007/03/04/geographical-indications-a-new-destiantion-marketing-mantra/
(September 10, 2007)
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LEGAL ASPECTS OF GI
Geographical indications are, for purposes of the TRIPS Agreement, a type of intellectual property ("IP").
"Geographical Indications," ("GIs") are defined, under Article 22(1) of the TRIPS Agreement, as "indications which
identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given
quality, reputation or other characteristic of the good is essentially attributable to its geographic origin." Geographical
indications are valuable to producers from particular regions for the same reasons that trademarks are valuable. First,
they are source; identifiers; they identify goods as originating in a particular territory, or a region or locality in that
territory. Geographical indications are also indicators of quality they let consumers know that the goods come from
an area where a given quality, reputation or other characteristic of the goods is essentially attributable to their
geographic origin. In addition, GIs are business interests? GIs exist solely to promote the goods of a particular area.
Finally, for purpose of the TRIPS Agreement, GIs are intellectual property, eligible for relief from acts of
infringement and/or unfair competition.
Geographical indications are used to indicate the regional origin of particular goods, whether they are agricultural
products or manufactured goods; provided that those goods derive their particular characteristics from their
geographic origin. Any producer who meets the standards set by the GI owner can use a GI. In the United States, the
owner of a GI can be any legal entity be it a government, an association of producers, or even an individual.
The registration of geographical indications confers certain rights on the registered proprietor and the authorized user
and they can institute suit for infringements of geographical indications.
Controversy regarding geographical indications arises when names that are protected in one region have a common
usage in another. For example, products such as Dijon mustard, Feta cheese, or Basmati rice may be viewed as
having obtained a generic status in the marketplace. Thus, some may claim that these names should not belong
exclusively to a specific group of producers in a specific geographic location as consumers expect these names to
identify a class of product that can be produced in one of many locations. On the other hand, others argue that the
products associated with the name have a certain quality that derives from the geographic region and specific
production process used. Thus, the protection of the name helps prevent the development of a generic association
thereby preserving the ability of the product to be made in the traditional manner. If a geographical term is used as
the designation of a kind of product, rather than an indication of the place of origin of that product, this term does no
longer function as a geographical indication. Where that has occurred in a certain country over a substantial period of
time, that country may recognize that consumers have come to understand a geographical term that once stood for the
origin of the product - for example, "Dijon Mustard," a style of mustard originally from the French town of Dijon - to
denote now a certain kind of mustard, regardless of its place of production.
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Note: In India geographical indications are protected and governed by the geographical indications of goods
(registration and protection) act 1999.
Champagne, Florida Oranges, Prosciutto di Parma, and New Zealand Lamb. While most often used on food
products, geographical indications can be used to identify any product (e.g., Czech crystal, Swiss watches, Indian
carpets. other examples of geographical indications internationally are: Camembert cheese, from camembert, a
village in Normandy, France .Champagne, an effervescent wine usually white in colour and made in champagne a
former province in north eastern France. parmesan, a variety of cheese originally from Parma in Italy. A trademark
is a sign used by an enterprise to distinguish its goods and services from those of other enterprises. It gives its owner
the right to exclude others from using the trademark. A geographical indication tells consumers that a product is
produced in a certain place and has certain characteristics that are due to that place of production. It may be used by
all producers who make their products in the place designated by a geographical indication and whose products
share typical qualities.
Under the geographical indications of goods (registration and protection) act 1999 an application can be made for
registering a geographical indication by an association of persons or producers or any organization or authority
representing the interests of the producers of the goods concerned under section 11 of the act.
The application must contain:
1. a statement of how the geographical indication serves to designate the goods as originating from the concerned
territory in respect of the quality, reputation or other characteristics which are due exclusively or essentially to the
geographical environment, with its inherent natural, and human factors and the production or processing or
preparation of which takes place in such territory or region or locality.
2. the class of goods to which the geographical indication shall apply.
3.the geographical map of the territory of the country or region or locality in the country in which thegoods originate
or are being manufactured;
4.the particulars regarding the appearance of the geographical indication as to whether it is comprised of the words or
figurative elements or both;
5. a statement containing such particulars of the producers of the concerned goods, if any, proposed to be initially
registered with the registration of the geographical indication as may be prescribed; andsuch other particulars as may
be prescribed.
After an application for registration is accepted by the registrar and if there has been an opposition which is
dismissed the geographical indication shall be registered.
The registration of a geographical indications shall if valid, give to the registered proprietor and the authorized user
or users the right to obtain relief in respect of its infringements and to the authorized user the exclusive rights to the
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use of the geographical indication in relation to the goods in respect of which it is registered. For an unregistered
geographical indication only an action of passing off can be taken.
The following geographical indications are prohibited from registration under section 9 of the act:
A geographical indication
1. the use of which would be likely to deceive or cause confusion;
2. the use of which would be contrary to any law for the time being in force ;
3. which comprises or contains scandalous or obscene matter;
4. which comprises or contains any matter likely to hurt the religious susceptibilities of any class or citizens of India.
5. which would be disentitled to protection to protection in the court of law.
6. which are determined to be generic names or indications of goods and are, therefore, not or ceased to be protected
in their country of origin, or which have fallen into disuse in that country;7. which, although literally true as to the
territory, region or locality in which the goods originate, but falsely represent to the persons that the goods originate,
but falsely represent to the persons that the goods originate in another territory, region or locality, as the case may be,
shall not be registered as a geographical indication.
Section 18 of the act provides that the registration of a geographical indication shall be for a period of 10 years and
shall be renewed for a period of another 10 years on an application made in the prescribed manner and within the
prescribed period and subject to the payment of the prescribed fees.
Note: http://www.legalserviceindia.com/articles/geoind.htm
GI INFRINGEMENT
What Amounts to GI Infringement
• When an unauthorized user uses a geographical indication that indicates or suggests that such goods
originate in a geographical area other than the true place of origin of such goods in a manner which mislead
the public as to the geographical origin of such goods.
• When the use of geographical indication results in an unfair competition including passing-off in respect of
registered geographical indication.
• When the use of another geographical indication results in false representation to the public that goods
originate in a territory in respect of which a registered geographical indication relates.
What are the penalties for infringement of GI
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The GI Act provides for a sentence of imprisonment for a term between six months to three years and a fine between
fifty thousand rupees and two lakh rupees. There are many other ways in which other existing laws can also control
or prevent the misuse of geographical denominations, one of which is Consumer Protection Law.
Note: http://www.nipoonline.org/geography.htm (October 25, 2008)
BIOPIRACY
Biological diversity or biodiversity encompasses all species of plants, animals and micro-organisms and the
variations between them, and the eco-systems of which they form a part. Traditional Knowledge (TK) associated
with such biological resources is an intangible component of the resource itself. Such knowledge has the potential of
being translated into commercial benefits by providing leads for development of useful products and processes.
The commercial potential involved in biological resources and the associated TK has assumed enormous magnitude
in the last couple of decades with the tremendous proliferation of the biotechnology industry. Given that most of the
world's biodiversity-rich countries are developing countries located in the tropics, these nations should have been in
a strong position to benefit substantially by trading in such bio-resources and the associated TK. Unfortunately, this
is far from the case. More often than not it is the giant MNCs of the developed world who are instrumental in
appropriation of the precious bio-resources and the allied TK of the South, without the prior informed consent (PIC)
of the legitimate holders of such resources, thereby bypassing any benefit-sharing arrangement with them. The
mounting profits emanating from the commercial exploitation of these prized resources of the South accrue solely to
the corporate giants of the developed world, courtesy the exclusive patent protection obtained by suppressing the true
source of the relevant bio-resource and/or TK. The country of origin of the concerned bio-resources and/or TK
however remains deprived of its legitimate share of the profits generated out of them. Such unscrupulous business
practices of the MNCs have come to be known as Biopiracy.
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Thus, in a nutshell 'Biopiracy' refers to the ways that corporations - almost all from the developed world - claim
ownership of, free ride on, or otherwise take unfair advantage of, the genetic resources and TK and technologies of
developing countries. Biopirates are those responsible for one or both of the following acts: (i) the theft,
misappropriation of, or unfair free-riding on, genetic resources and/or TK through the patent system; and (ii) the
unauthorized and uncompensated collection for commercial ends of genetic resources and/or TK.
The case for international legal protection
While the neem victory should certainly be regarded as a breakthrough for the legitimate rights of the
holders of TK - not only in India but throughout the South - the time, money and effort involved in the
whole process of revocation (which in this particular case lasted for ten long years) does stand out as a
cause of concern in following the same path in case of other similar cases of biopiracy in future. In fact, the
way biopiracy has been assuming endemic proportions, the transaction costs involved in getting biopiracy
patents examined and revoked in foreign patent offices on a case-by-case basis could turn out to be
prohibitive for a developing country like India. Hence, the necessity for an internationally enforceable legal
regime, which can ensure an effective protection for the rights of communities on their TK-based biological
resources by prohibiting the unscrupulous biopiracy practices of the western MNCs.
The need to avoid making GI too generic
A zone is an area of land without any particular qualifying attribute. And a region is a single tract of land
comprising independently owned farmlands, e.g. North West India. A region is said to be discrete between
adjoining regions with measurable homogeneity. The sub-region ensures a substantial level of homogeneity in the
attributes of the produce covered under GI. Therefore, there is likely to be minor variation in the product, if the GI
area is large. For example, Basmati rice if granted GI may cover the rice-growing tracts of North West India and
Pakistan while there are minor but acceptable levels of variations between Basmati from Amritsar,
Karnal/Kurukshetra and Dehradun for the reason that this rice growing zone is quite large and enjoys some variation
in climate. The current Basmati
Foot note: ‘Appellation of Origin’ (AO) means that a product originates in a specific geographic region and the
characteristic qualities of the product are due to the geographical environment, including natural and human factors.
Most of the agricultural produce falls under AO.
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TRADITIONAL KNOWLEDGE DIGITAL LIBRARY (TKDL)
Very few countries in the world can boast of the variety and vastness of traditional knowledge that India has. As the
global economy has taken more firm root, however, this knowledge has increasingly been available to non-Indians
as well. And in research laboratories and patent offices around the world, this knowledge has been exploited and
claimed exclusively by foreigners, both individuals and corporations. Various voices in India have long protested
this, and urged the government to intervene to check this practice. Finally, India has woken up to this task.
The country will now have a unique digital library, known as the Traditional Knowledge Digital Library (TKDL),
of its rich and varied traditional knowledge. The brainchild of Dr. V K Gupta, Head, IT Division, Council of
Scientific and Industrial Research (CSIR), the library is designed to record traditional remedies for posterity using
ancient science and modern technology. It is the first of its kind in the world and has got scientists excited with the
potential it promises. Dr Gupta feels the library will go a long way towards helping India protect its traditional
knowledge, and we will not have to fight very expensive court cases trying to win patents back. With six years of
tireless work behind them, Dr Gupta's team can look forward to the TKDL protecting vital national interests.
TKDL is a collaborative project between CSIR, the Ministry of Science and Technology, and Department of
Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy, Ministry of Health and Family Welfare, and is
being implemented at CSIR in New Delhi. It is expected to cost around 2.5 million dollars. It entails research in
Ayurveda, Siddha, Unani, Yoga, Naturopathy and folklore medicine. Over a hundred experts have been poring over
material during the last five years to help complete this unique project.
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The government's recent traditional knowledge digital library will send data to patent offices abroad, so that
indigenous knowledge that India abundantly has is not patented overseas.
Theft of traditional knowledge
In 2000, CSIR found that almost 80 per cent of the 4,896 references to individual plant based medicinal patents in
the United States Patents Office that year related to just seven medicinal plants of Indian origin. Three years later,
there were almost 15,000 patents on such medicines spread over the United States, UK, and other registers of patent
offices. In 2005 this number had grown to 35,000, which clearly demonstrates the interest of developed world in the
knowledge of the developing countries. Conveniently, none of the patent examiners are from developing countries,
allowing a virtual free pass to stealing indigenous knowledge from the Old World.
Creating the TKDL's database has not been easy. For many years, nearly a hundred doctors and scientists studied
ancient medical texts, taking notes, tabulating the data and keying in information. The doctors were practitioners of
Ayurveda, Unani and Siddha, ancient Indian medical systems that date back thousands of years. Leafing through the
texts took a lot of effort and co-ordination. The Ayurvedic texts were in Sanskrit and Hindi, Siddha ones were in
Tamil, and Unani was in Arabic and Persian. Many of the texts that they waded through were thousands of years
old. And the information to be collated is enormous; for instance, there are already nearly 150,000-recorded
Ayurvedic, Unani and Siddha medicines, and over 1500 asanas in yoga. Yoga masters say that there are thousands
of other asanas that have been lost without proper documentation.
A lot of traditional knowledge is also oral, and acquiring it in recorded form can be challenging. Says Sahai: "The
huge corpus of knowledge lying outside of books must be put on a very high priority. For instance, there is a lot of
knowledge available with the tribals in Jharkhand and Madhya Pradesh. But there is erosion of indigenous
knowledge among the Tharu tribals in Uttar Pradesh in the Terai region because of urbanisation. In another two
generations this knowledge will disappear. This documentation must be taken up on a war footing and the digital
library has a massive job on its hands."
Note: http://www.indiatogether.org/2007/jan/eco-tkdl.htm (September 10, 2008)
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Present Status (January 2006)
Present status of Traditional knowledge Digital Library is reflected in the table below:
Discipline Target(No. of
Formulations)
Achieved
Ayurveda 59000 59000
Unani 77000 51000
Siddha 10000
Yoga 1500
Total 14,7500 11,0000
At present, TKDL contains 11.0 million pages (A4 size) information in five international languages.
TKDL has become a model for other countries for defensively protecting their TK from misappropriation. Countries
like South Africa, African Regional Industrial Property Organization (ARIPO), Mongolia and Thailand have
expressed their keen desire to replicate the TKDL of India. TKDL is also being created for SAARC countries.
Convention on Biological Diversity (CBD)
The Convention, which was agreed in 1992, seeks to promote the conservation of biodiversity and the equitable
sharing of benefits arising out of the utilisation of genetic resources.28 It asserts the sovereign rights of nations over
their national resources, and their right to determine access according to national legislation with the aim of
facilitating the sustainable use of these resources, promoting access and their common use. It notes that access to
genetic resources should be on the basis of prior informed consent, and on mutually agreed terms that provide fair
and equitable sharing of the results of R&D and the benefits of commercialisation and utilisation.29 It also calls for
the fair and equitable sharing of the benefits derived from the use of traditional knowledge.30 In respect of
intellectual property, the CBD states that access and transfer (of genetic resources) should be consistent with the
“adequate and effective protection of intellectual property rights.” Governments should put in place policies to
ensure that, particularly for developing countries, access to genetic resources takes place on mutually agreed terms.
It notes that patents and other IPRs may have an influence on implementation of the Convention, and governments
should cooperate (subject to national and international law) in order to ensure that such rights are supportive of and
do not run counter to the CBD’s objectives.31 The Governing Body of the CBD has now agreed guidelines on
access and benefit sharing as a guide to countries when drafting national legislation.32 But countries face difficult
decisions, both practical and conceptual, in putting benefit sharing into practice. First, the resources in question are
often not “owned” by anyone in particular, but are the heritage of one or more communities, which are not
necessarily cohesive, or all living in one country. Secondly, while some genetic resources can be traced to very
specific areas and habitats, in other cases they comprise components from many countries, in which case benefit-
36
sharing arrangements will be totally impractical. Thirdly, because of the diversity of national circumstances or
indeed those within nations in relation, for example, to their cultural, economic or institutional conditions, it is very
difficult to devise legislation and practices which cover that diversity in ways that facilitate implementation of such
measures. Indeed, care will be necessary to ensure that legislation and practices that seek to give effect to the CBD
do not in fact unnecessarily restrict or discourage the legitimate use of genetic resources, whether with a view to
commercialisation or in terms of scientific research. There is some evidence that the tightening of restrictions in
some countries has hindered the access of biologists studying genetic resources.While recognising these difficulties,
our focus is on how intellectual property rules might need to be modified in both developed and developing
countries, to provide support for access and benefit sharing. Many argue that since TRIPS says nothing about the
CBD, nor the CBD about TRIPS, there can be no conflict between the two agreements. Moreover it is argued,
TRIPS supports the CBD in that patenting often engenders commercialisation which generates the benefits that are
a prerequisite to any benefit sharing arrangement. Others have countered this argument by pointing out that since
patenting based on the use of genetic resources is allowed under TRIPS, (subject to meeting patentability criteria),
this does not support the objectives of the CBD because the criteria for patentability do not include prior informed
consent or mutually agreed terms for benefit sharing. While the CBD asserts national sovereignty over genetic
resources, there is nothing in TRIPS to provide support to these CBD objectives. Foreign companies may obtain
private rights derived from national resources, but TRIPS is silent on obligations set out by the CBD. Nevertheless
even those, mainly from industry, who argue there is no conflict between the CBD and TRIPS, broadly support the
underlying principles of the CBD. In particular, since the CBD asserts the principle that nations have sovereignty
over their natural resources, those industries that are interested in making use of genetic resources need to ensure
that prospecting activities take place on the basis of prior informed consent, and agreements on benefit sharing. If
they ignore these principles, then any access to these resources may not be legitimate.
Note: Traditional knowledge and geographical indication http://www.iprcommission.org/papers/pdfs/final_report/Ch4final.pdf (September 24, 2008)
37
WORLDWIDE SCENARIO
It is not just India that stands to benefit if a digital library is organised to document traditional knowledge and shield
it from patent marauders. Like India, the rest of South Asia too is rich in traditional knowledge that is crucial to
health, medicines, agriculture, biotechnology and biodiversity. Eighty per cent of its 1.4 billion people have no easy
access to modern health services, and are therefore very dependent on traditional medicine.
At the moment, India is the only country in the world with such a traditional knowledge digital library, but in many
ways, the Indian effort is also a clear message to other countries to do a similar thing to protect their knowledge.
After the Indian venture into setting up this library, other countries such as Iran, South Korea, Thailand, Magnolia,
Cambodia, South Africa, Nigeria, Pakistan, Nepal, Sri Lanka and Bangladesh have shown interest in setting up
similar ones for their own traditional knowledge. Indian scientists say that China and Japan too have a wealth of
traditional information and will soon also create a digital library like India's. Representatives from South Africa, the
Commonwealth West African Education Delegation, the African Regional Industrial Property Organization and
International Property Office in Singapore have already discussed with India the possibility of creating similar
databases.
Note: http://www.thehindubusinessline.com/2003/11/27/stories/2003112700990200.htm (October 15, 2008)
38
CONCLUSION
Geographical indications stand on an equal footing with other intellectual property rights such as trademarks or
copyright. In none of the other fields of intellectual property rights is a difference made in the level of protection of
those rights according product categories. A uniform level of protection applies. There are no logical or legal reasons
which could justify two different levels of protection in the field of geographical indications. There is no substantive
justification for a discriminatory treatment between geographical indications for wines or spirits and those for other
products. Since the adoption of the TRIPS Agreement, Member awareness of the need for sufficient protection of
geographical indications for all products has continued to grow. Also, the ongoing negotiations in the field of
industrial and agricultural products, as pursued by the WTO, shows the growing importance of extending the level of
protection for geographical indications for wines and spirits for geographical indications to all products. Such
protection is an invaluable marketing tool and an added value for exports because it increases the chances of market
access for such goods. The extension of the so-called "additional" protection of Article 23 to geographical indications
for products other than wines and spirits must be part of the global vision of a multilateral trade system. Nations have
to understand the fact that the protection for GIs is best provided under national laws because it is not the provisions
of the treaty but actual national laws that provide protection in relation to GIs. For example, even if a general
extension of the Article 23 is provided, it may not result in an effective protection of the GIs, unless the laws of the
member countries at the national level have a uniform protection regime.
Every country – whether developed, developing or in transition – has products which are the fruits of its culture and
know-how, and its unique blend of soil, water or climate, and which, therefore, deserve effective protection. At a
time when further trade liberalization is being striven for, it seems, particularly in relation to the negotiations going
on in the field of agriculture, a natural corollary that Members should be able to fully reap the advantages of their
geographical indications when competing with their products on the liberalized world market. This can only be done
effectively by granting them additional protection against erosion of their geographical indications.
In conclusion, Bulgaria, Cuba, the Czech Republic, Egypt, Iceland, India, Liechtenstein, Mauritius, Nigeria, Sri
Lanka, Switzerland, Turkey and Venezuela propose that the TRIPS Council continues its negotiations and starts
without any further delay to work out the legal modalities necessary to eliminate the existing deficiencies in the
TRIPS Agreement in the field of the protection of geographical indications with a view to reach a mutually agreeable
solution.
Note: Geographical Indications An Indian Perspective www.teriin.org/events/docs/wtopresent/sanjay22.ppt (15 November, 2008)
39
REFERENCES
1. Geographical Indications Registry 3 Introduction http://www.keralaindustry.org/e_magazine/geographical_indications_registr.htm
2. Biodiversity and Geographical Indications in India http://www.ifpindia.org/Biodiversity-and-Geographical-Indications-in-India.html (October 20, 2008)
3. Geographical Indication Services http://www.infinijuridique.in/geographical-indication.html (October 16, 2008)
4. IPR Toolkit – India http://newdelhi.usembassy.gov/iprgeoind.html
5. http://www.kashmirnewz.com/f000102.html 18 (October 20, 2008)
6. 13 January 2007 Traditional Knowledge Digital Library 33 http://www.tkdl.res.in/tkdl/langdefault/common/home.asp?GL=Eng
7. Registration of Geographical Indication http://www.ecap-project.org/fileadmin/ecapII/pdf/en/information/thailand/gazettes/chiangrai_phulae_pineapple.pdf 8. Tirupati Laddu 21 http://ychittaranjan.wordpress.com/2008/04/04/tirupati-laddu-to-get-patented/ 9. Dr Mangala Hirwade and Dr. Anil W. Hirwade –(Patent Information System) Geographical Indication Registration Tables http://itt.nissat.tripod.com/itt0103/tkdl.htm (September 30, 2008)
WEBSITES REFFERED
1. www.patentoffice.nic.in/ipr/gi/geo_ind.htm
2. www.icar.org.in/faqs/ipr.htm
3. www.indiatogether.org/2004/apr/eco-tradeGIs.htm
4. www.wipo.int/export/sites/www/sme/en/activities/meetings/india_nift_05/gi_gupta.ppt
5. www.iprcommission.org/papers/pdfs/final_report/Ch4final.pdf
6. http://www.nerve.in/tags:darjeeling+tea
7. www.tkdl.res.in
8. http://www.legalserviceindia.com/articles/patents_geographical.htm