A geographical indication (GI) is an important method of indicating the origin of product or services. A GI aims to promote commerce by informing the customer about the origin of the product. A GI is generally protected in a national basis but there are various international treaties that provide assistance in the protection in a large number of countries.
In general sense, a GI is a notice which states that a given product originates in a given geographical area. For example, the GI champagne is used to indicate that a special kind of sparkling wine originates in the champagne region of France. In India, currently there are more than 200 registered GIs although the products liable to be registered as GI are much more in nature. But many of the products still face the problem of non-registration. This can be because –
- Idea of intellectual property is not well-known amongst regional products;
- Producers are not able to see value in such indications.
Why should the Geographical Indications be protected in a country?
Geographical indications are more than just a name or a symbol. They reflect a reputation strongly linked to geographical areas of varying sizes, thus giving them an emotional component. A GI’s reputation is a collective and intangible asset. If the GI is not protected, it could be used without restriction and its value would be diminished and eventually lost.
The use of GI by parties who are not authorized to do so is detrimental to the business of legitimate producers and consumers as well. Not only the producers suffer damages as their business is affected, but also the reputation of their product is affected. In many cases, the producers may themselves be prevented from using the indication, if it has been registered as a trademark by a company.
Protecting a GI enables those who have the right to use the indication to take measures against others who use it without former’s permission and take benefit from its reputation free of charge (“free-riders”).
Why should the Geographical Indications be protected abroad?
Intellectual property rights are governed by the “territoriality principle”. This means that the protection granted in a particular jurisdiction is limited to the territory of that jurisdiction only. Therefore, it cannot be protected abroad. As a result, the GI would face the risks usually associated with lack of protection.
Therefore, the GI product should be protected in each of the markets in which it is commercialized. However, to protect a GI abroad, there may be a requirement to first protect the GI in the country of origin.
How to protect geographical indications inside a country?
A geographical indication can be protected in the following ways –
- Sui-generis legislation– Under this, a state formulates a unique law for the protection of GIs. India has followed this criterion and enacted The Geographical Indication of Goods (Registration and Protection) Act, 1999.
- Register of GIs– Another way to protect GIs is to have a register of geographical indications in which information regarding all the GIs can be kept.
- Relying on law against unfair competition/ tort of ‘passing off ’– In cases, where separate enactment is not present, the state can rely on the law that prevents unfair trade practices. Unfair trade practices refer to using a product that doesn’t originate in the region named.
- Registration of collective marks and certification marks– Unlike individual trademarks, collective marks belong to a group of traders or producers. A certification mark, on the other hand, doesn’t belong to anyone and is registered on the grounds that anyone who meets the specified conditions is allowed to use it.
How to get a GI protection worldwide?
An applicant who wants to secure his GI protection worldwide can do so in following two contexts –
- Bilateral context – In this context, one country enters into an agreement with another for the mutual protection of their geographical indications. After this, they exchange the list of GIs concerned and thereafter, protection is granted on reciprocal basis.
- Multilateral context – Under the multilateral context, the registration of GI is governed by various multilateral agreements administered by WIPO and other international organizations. Example of such agreement is the Lisbon Agreement for the protection of Appellations of Origins and their International Registration. Other such agreements are the Paris Convention and the TRIPS agreement.
Where there is a comparison in the two contexts, the bilateral context prevails as a registration under an international agreement, and thereby, protecting the GI in the entire member states of that agreement.