geographical indications & traditional knowledge
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Geographical Indications & Traditional Knowledge
Basics of GIProtection of GI at National LevelProtection of GI at International LevelRegistration Process in IndiaProcedure for Filing GI ApplicationRegistered GIs in IndiaBasics of Traditional Knowledge Case study Discussions
BASICS OF GEOGRAPHICAL INDICATION
What is a Geographical Indication?
It is an indication It originates from a definite geographical territory. It is used to identify agricultural, natural or manufactured goodsThe manufactured goods should be produced or processed or prepared in that territory.It should have a special quality or reputation or other characteristics
Examples of Indian GIs
Basmati Rice Darjeeling Tea Kanchipuram Silk SareeAlphanso MangoNagpur OrangeKolhapuri ChappalBikaneri BhujiaAgra Petha
Benefits of the Registration of GIs
It confers legal protection to Geographical Indications in IndiaPrevents unauthorized use of a Registered Geographical Indication by othersIt provides legal protection to Indian Geographical Indications which in turn boost exports.It promotes economic prosperity of producers of goods produced in a geographical territory.
Who can apply for the registration of a GI ?
Any association of persons, producers, organization or authority established by or under the law can apply.The applicant must represent the interest of the producersThe application should be in writing in the prescribed formThe application should be addressed to the Registrar of Geographical Indications alongwith prescribed fee.
Who is a registered proprietor of a GI?
Any association of persons, producers, organization or authority established by or under the law can be a registered proprietor.
Their name should be entered in the Register of Geographical Indication as registered proprietor for the Geographical Indication applied for.
Who is an authorized user?
A producer of goods can apply for registration as an authorized user
It must be in respect of a registered geographical indication
He should apply in writing in the prescribed form along with prescribed fee
Who is a producer in relation to a GI?
The persons dealing with three categories of goods are covered under the term Producer:
Agricultural Goods includes the production, processing, trading or dealing
Natural Goods includes exploiting, trading or dealing
Handicrafts or Industrial goods includes making, manufacturing, trading or dealing.
Is a registration of a GI compulsory and how
does it help the applicant?
Registration is not compulsory
Registration affords better legal protection to facilitate an action for infringement
The registered proprietor and authorised users can initiate infringement actions
The authorised users can exercise the exclusive right to use the geographical indication.
Validity Period of GI
The registration of a geographical indication is valid for a period of 10 years.
It can be renewed from time to time for further period of 10 years each.
If a registered geographical indication is not renewed it is liable to be removed from the register.
When is a registered GI said to be infringed?
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 result 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.
Can a registered geographical indication
be assigned, transmitted, etc?
No. A geographical indication is a public property belonging to the producers of the concerned goods.
It shall not be the subject matter of assignment, transmission, licensing, pledge, mortgage or such other agreement.
However, when an authorized user dies, his right devolves on his successor in title.
Can a registered GI or a registered authorized user be removed from the register?
Yes. The Appellate Board or the Registrar of Geographical Indications has the power to remove the geographical indication or an authorized user from the register. Further, on application by an aggrieved person action can be taken.
How a geographical indication is different from a trade mark?
A trade mark is a sign which is used in the course of trade and it distinguishes goods or services of one enterprise from those of other enterprises.
Whereas a geographical indication is an indication used to identify goods having special characteristics originating from a definite geographical territory.
PROTECTION OF GI AT NATIONAL LEVEL
Forms of protection of GI on the National level
As regards the various forms of protection of geographical indications on the national level, three main categories can be distinguished. The first category comprises all possibilities of protection which are not based on a decision taken by the competent authority establishing protection with respect to a particular geographical indication, but which result from the direct application of legislative provisions or principles established by jurisprudence. The second category covers the protection of geographical indications through registration of collective marks (including agricultural labels) or certification marks (or guarantee marks). The third category includes all special titles of protection of geographical indications which result from a decision made by the competent government authority establishing the protection.
Special Titles of Protection
Comprises the protection of appellations of origin—whether they result from a registration with the industrial property office, as under the new Russian law, or from the adoption of decrees, as is the practice in France since the adoption, in 1919, of a special law for the protection of appellations of origin. According to this law, an appellation of origin consists of the name of a country, region or locality that serves to designate a product originating therein, the quality and characteristics of which are due to the geographical environment, including both natural and human factors. This means that only such products are protected under this special title which originate from a specific area and which owe their specific quality to their place of origin. In order to ensure that the products possess the specified qualities, a control mechanism has been set up by the competent authorities, and quality controls are carried out regularly. Only products which comply with the quality standards are protected by an appellation of origin. Initially, appellations of origin only concerned wines and spirits, but later the concept was extended to include other products (such as dairy products, mainly cheese and butter), poultry and plant products.Because of the success of the French appellations of origin, the same or a similar system was introduced also in other countries, mainly in the sector of wines and spirits.
PROTECTION OF GI AT INTERNATIONAL LEVEL
A) .Protection through Multilateral Treaties
Three multilateral treaties administered by WIPO contain provisions for the protection of geographical indications:
the Paris Convention for the Protection of Industrial Property
the Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods (hereinafter referred to as the Madrid Agreement), and
the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (hereinafter referred to as the Lisbon Agreement).
(B). Protection through the Provisions of Bilateral Agreements
A further possibility of international protection of geographical indications is the conclusion of bilateral agreements between two states.
A number of countries have entered into such agreements. In general, such bilateral agreements consist of lists of geographical indications which were drawn up by the contracting parties and an undertaking to protect the geographical indications of the respective contracting parties.
The agreement usually also specifies the kind of protection that is to be granted. Although in general useful, bilateral agreements cannot constitute an entirely adequate solution to the problem of the lack of international protection because of the multiplicity of negotiations required and, resulting there from, an inevitable diversity of standards.
(C). Provisions of the TRIPS Agreement on Geographical Indications
Part II, Section 3 of the TRIPS Agreement is dedicated to geographical indications. The general norm of protection is provided by Article 22.2, which reads as follows:“In respect of geographical indications, Members shall provide the legal means for interested parties to prevent:- the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of the origin in a manner which misleads the public as to the geographical origin of the good;- any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967).”
TRIPS…Article 23.1 provides for additional protection for geographical indications for wines and spirits. It reads as follows:
“Each Member shall provide the legal means for interested parties to prevent use of a geographical indication identifying wines for wines not originating in the place indicated by the geographical indication in question or identifying spirits for spirits not originating in the place indicated by the geographical indication in question, even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by the expressions such as ‘kind,’ ‘type,’ ‘style,’ ‘imitation’ or the like.”
The Law of Unfair Competition
The use of a certain geographical indication for goods or services not originating from the respective area may be misleading and thus may deceive consumers. Furthermore, such use may constitute a misappropriation of the goodwill of the person who is truly entitled to use the geographical indication. An action for unfair competition—which, depending on the national law, is either based on statutory provisions, as interpreted by court decisions, or on common law—can be instituted in order to prevent competitors from resorting, in the course of trade, to such misleading practices.
REGISTRATION PROCESS IN INDIA
STEP 1: Filing of application Please check whether the indication comes within the ambit of the definition of a Gl under section 2(1)(e).The association of persons or producers or any organization or authority should represent the interest of producers of the concerned goods and should file an affidavit how the applicant claims to represent their interest.Application must be made in triplicate. The application shall be signed by the applicant or his agent and must be accompanied by a statement of case. Details of the special characteristics and how those standards are maintained. Three certified copies of the map of the region to which the GI relates. Details of the inspection structure if any to regulate the use of the GI in the territory to which it relates. Give details of the entire applicant together with address. If there is a large number of producers a collective reference to all the producers of the goods may be made in the application and the G.I., If registered will be indicated accordingly in the register.
Geographical Indications Registry Intellectual Property Office Building Industrial Estate, G.S.T Road Guindy, Chennai – 600 032 Ph: 044 – 22502091-93 & 98Fx : 044 – 22502090 E-mail: [email protected] : ipindia.gov.in
The applicant must have an address for service in India. Generally, application can be filed by (1) a legal practitioner (2) a registered agent.
STEP 2 and 3: Preliminary scrutiny and
The Examiner will scrutinize the application for any deficiencies. The applicant should within one month of the communication in this regard, remedy the same. The content of statement of case is assessed by a consultative group of experts will versed on the subject. The will ascertain the correctness of particulars furnished. Thereafter an Examination Report would be issued.
STEP 4: Show cause notice
If the Registrar has any objection to the application, he will communicate such objection. The applicant must respond within two months or apply for a hearing. The decision will be duly communicated. If the applicant wishes to appeal, he may within one month make a request. The Registrar is also empowered to withdraw an application, if it is accepted in error, after giving on opportunity of being heard.
STEP 5: Publication in the geographical indications Journal
Every application, within three moths of acceptance shall be published in the Geographical Indications Journal.
STEP 6: Opposition to Registration
Any person can file a notice of opposition within three months (extendable by another month on request which has to be filed before three months) opposing the GI application published in the Journal. The registrar shall serve a copy of the notice on the applicant.Within two months the applicant shall sent a copy of the counterstatement. If he does not do this be shall be deemed to have abandoned his application. Where the counter-statement has been filed, the registrar shall serve a copy on the person giving the notice of opposition. Thereafter, both sides will lead their respective evidences by way of affidavit and supporting documents. A date for hearing of the case will be fixed thereafter.
STEP 7: Registration
Where an application for a GI has been accepted, the registrar shall register the geographical indication.
If registered, the date of filing of the application shall be deemed to be the date of registration.
The registrar shall issue to the applicant a certificate with the seal of the Geographical indications registry.
STEP 8: RenewalA registered GI shall be valid for 10 years and can be renewed on payment of renewal fee.
STEP 9: Additional protection to notified goods Additional protection for notified goods is provided in the Act.
STEP 10: AppealAny person aggrieved by an order or decision may prefer an appeal to the intellectual property appellate board (IPAB) within three months.
The address of the IPAB is as follows: Intellectual Property Appellate Board
Annexe 1, 2 nd Floor, Guna Complex, 443, Anna Salai, Chennai – 600 018
What Indications are not registerable ?
For registrability, the indications must fall within the scope of section 2(1)e of GI Act, 1999. Being so, it has to also satisfy the provisions of section 9, which prohibits registration of a Geographical Indicationthe use of which would be likely to deceive or cause confusion; or the use of which would be contrary to any law for the time being in force; or which comprises or contains scandalous or obscene matter; or which comprises or contains any matter likely to hurt the time being in force; religious susceptibilities of any class or section of the citizens of India; or which would otherwise be disentitled to protection in a court; or 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; or 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 in another territory, region or locality as the case may be.
PROCEDURE FOR FILING GI APPLICATION
Form and signing of application
Every application for the registration of a geographical indication shall be made in the prescribed form (GI-1A to ID) accompanied by the prescribed fee (Rs.5, 000).
It shall be signed by the applicant or his agent.
It must be made in triplicate along with three copies of a Statement of Case accompanied by five additional representations.
Fees may be paid in cash or sent by money order or by a bank draft or by a cheque.Bank Drafts or cheques shall be crossed and be made payable to the Registrar at the appropriate office of the Geographical Indication Registry.It should be drawn by a scheduled bank at the place where the appropriate office of the Geographical Indications Registry is situated.Where a document is field without fee or with insufficient fee such document shall be deemed to have not been filed.
All applications shall be typewritten, lithographed or printed in Hindi or in English.
It should in large and legible characters with deep permanent ink upon strong paper, on one side only.
The size should be a approximately 33 cms by 20 cms and shall have on the left and part thereof a margin of not less than 4 centimeters.
Signing of documents
In case of i. An association of persons or producers shall
be signed by the authorized signatory. ii. A body corporate or any organization or any
authority established by or under any law for the time being in force shall be signed by the Chief Executive, or the Managing Director or the secretary or other principal officer.
iii. In case of partnership it shall be signed by at least one of the partners.
The capacity in which an individual signs a document shall be stated below his signature.
Signatures shall be accompanied by the name of the signatory in English or in Hindi and in capital letters.
Principal place of business in India
Every application for registration of a G.I shall state the principal place of business in India.A body corporate should state the full name and nationality of the Board of Directors.Foreign applicants and persons having principal place of business, in their home country should furnish an address for service in India.In the case of a body corporate or any organization or authority established by or under any law for the time being in force, the country of incorporation or the nature of registration, if any, as the case may be shall be given.
Convention Application should contain the following
A certificate by the Registry or competent authority of the Geographical Indications Office of the convention country.The particulars of the geographical indication, the country and the date or dates of filing of the first application.The application must be the applicants’ first application in a convention country for the same geographical indications and for all or some of the goods.The application must include a statement indicating the filing date of the foreign application, the convention country where it was filed, the serial number, if available.
Statement of user in applications
An application to register a geographical indication shall contain a statement of user along with an affidavit.
Content of Application
Every application shall be made in the prescribed forms and shall contain the following :A statement as to how the geographical indication serves to designate the goods as originating form the concerned territory in respect of specific quality, reputation or other characteristics. The three certified copies of class of goods to which the geographical indication relates The geographical map of the territory.The particulars of the appearance of the geographical indication words or figurative elements or both; A statement containing such particulars of the producers of the concerned goods proposed to be initially resisted. Including a collective reference to all the producers of the goods in respect of which the application is made.
Content of Application…..The statement contained in the application shall also include the following:
An affidavit as to how the applicant claim to represent the interest of the association of persons or producers or any organization or authority established under any law.The standards benchmark for the use of the geographical indication or the industry standard as regards the production, exploitation, making or manufacture of the goods having specific quality, reputation or other characteristic of such goods that is essentially attributable to its geographical origin with the detailed description of the human creativity involved, if any or other characteristic; The particulars of the mechanism to ensure that the standards, quality, integrity and consistency or other special characteristic are maintained by the producers, or manufacturers of the goods.Three certified copies of the map of the territory, region or locality;The particulars of special human skill involved or the uniqueness of the geographical environment or other inherent characteristics associated with the geographical indication. The full name and address of the association of persons or organization or authority representing the interest of the producers of the concerned goods;Particulars of the inspection structure;In case of a homonymous indication, the material factors differentiating the application from the registered geographical indications and particulars of protective measures adopted.
Acknowledgement of receipt of applications:
Every application of the registration of a geographical indication in respect of any goods shall, on receipt be acknowledged by the Registrar.
The acknowledgement shall be by way of return of one of the additional representations with the official number of the application duly entered thereon.
REGISTERED GIS IN INDIA
(List to be circulated to the students)
FROM APRIL 2004 – MARCH 2005 Darjeeling Tea (word & logo)Aranmula KannadiPochampalli Ikat
FROM APRIL 2005 – MARCH 2006 Salem FabricChanderi FabricSolapur ChaddarSolapur Terry TowelKotpad Handloom
fabricMysore SilkKota DoriaMysore AgarbathiKancheepuram SilkBhavani JamakkalamKullu ShawlBidriwareMadurai SungudiOrissa IkatChannapatna Toys & DollsMysore Rosewood InlayKangra TeaCoimbatore Wet GrinderSrikalahasthi KalamkariMysore Sandalwood OilMysore Sandal soapKasuti EmbroideryMysore Traditional PaintingsCoorg Orange
FROM APRIL 2006 – MARCH 2007Mysore Betel leafNanjanagud BananaMadhubani Paintings
FROM APRIL 2007 – MARCH 2008 Kondapalli Bommallu,Thanjavur Paintings, Silver Filigree of Karimnagar,Alleppey Coir,Muga
Silk,Temple Jewellery of Nagercoil , Mysore JasmineUdupi JasmineHadagali JasmineNavara RicePalakkadan Matta RiceThanjavur Art PlateIlkal SareesApplique – Khatwa Patch Work of BiharSujini Embroidery Work of BiharSikki Grass Work of BiharMalabar PepperAllahabad SurkhaNakshi KanthaGanjifa cards of Mysore (Karnataka)Navalgund DurriesKarnataka Bronze WareMolakalmuru SareesMonsooned Malabar Arabica CoffeeMonsooned Malabar Robusta CoffeeSpices – Alleppey Green CardamomCoorg Green CardamomEast India LeatherSalem SilkKovai Cora Cotton, Arani Silk
FROM APRIL 2008 - TILL DATE Bastar DhokraBastar Wooden CraftNirmal Toys and CraftMaddalam of PalakkadScrew Pine
Craft of KeralaSwamimalai Bronze IconsBastar Iron CraftKonark Stone carvingOrissa PattachitraMachilipatnam KalamkariEathomozhy Tall CoconutBrass Broidered Coconut Shell Crafts of KeralaBlue Pottery of JaipurMolela Clay WorkKathputlis of RajasthanLeather Toys of IndoreBagh Prints of Madhya PradeshSankheda FurnitureAgates of CambayBell Metal Ware of Datia and TikamgarhKutch EmbroideryKani ShawlChamba RumalDharwad PedhaPokkali RicePipli Applique WorkBudiiti Bell & Brass CraftThanjavur DollSantiniketan Leather GoodsNirmal FurnitureNirmal PaintingsAndhra Pradesh Leather PuppetryLaxman Bhog MangoKhirsapati (Himsagar) MangoFazli Mango grown in the district of Malda
BASICS OF TRADITIONAL KNOWLEDGE
The Definition of Traditional knowledge
The definition of TK in the WIPO Report is given as the following:
“WIPO currently uses the term “traditional knowledge” to refer to tradition‑based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information; and all other tradition‑based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields. “Tradition‑based” refers to knowledge systems, creations, innovations and cultural expressions which: have generally been transmitted from generation to generation; are generally regarded as pertaining to a particular people or its territory; and, are constantly evolving in response to a changing environment. Categories of traditional knowledge could include: agricultural knowledge; scientific knowledge; technical knowledge; ecological knowledge; medicinal knowledge, including related medicines and remedies; biodiversity‑related knowledge; “expressions of folklore” in the form of music, dance, song, handicrafts, designs, stories and artwork; elements of languages, such as names, geographical indications and symbols; and, movable cultural properties.”
Three general forms of TK‑related IP protection
Protection extended to the content, substance or idea of knowledge and culture (such as traditional know-how about the medicinal use of a plant, or traditional ecological management practices) – corresponding roughly to the subject matter of patents, utility models and know-how or trade secrets;
Protection extended to the form, expression or representation of traditional cultures (such as a traditional song, performance, oral narrative or graphic design) – corresponding roughly to the subject matter of copyright and performer’s rights and rights in industrial and textile designs; and
Protection extended to the reputation and distinctive character of signs, symbols, indications, patterns and styles associated with traditional cultures, including the suppression of misleading, deceptive and offensive use of this subject matter – corresponding roughly to the subject matter of trademarks and geographical indications, as well as specific protection for material such as the names of IGOs, hallmarks and national symbols.
Key qualities of Traditional Knowledge
The Key qualities of Traditional Knowledge that distinguish it from the general forms of knowledge:
the context of creation
association with the community
link to the community through a sense of ownership or responsibility
the requirement that it be knowledge
community to identify traditional knowledge
CASE STUDY DISCUSSIONS
Few Case studies
Darjeeling TeaBasmati RicePochampalli Ikat Leather Toys of Indore Kutch Embroidery Kancheepuram SilksMadhubani PaintingsBastar Dhokra TurmericNeam