1. What
is the legal position relating to geographical indications
of goods in India?
2. What is a Geographical
Indication?
3. Can a geographical indicator
be registered in the name of an individual?
4. Who administers the registration
of geographical indication?
5. What are the prohibitions
against the registration of geographical indications?
6. What is the procedure
for registration?
7. What happens to the application
for registration in the Registry of Geographical Indications?
8. Is it possible to amend
and correct the entries in the register of geographical
indicators?
9. What is the duration of
a geographical indications?
10. What are the remedies
available to the infringement of geographical indications?
11. Is there a period of
limitation for indication of criminal cases?
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1.
What is the legal position relating to geographical
indications of goods in India?
Prior to the enactment
of Geographical Indication of Goods (Registration and
Protection) Act, 1999. There was no enactment relating
to geographical indications. Prior to this enactment,
a misdescription or false representation relating to
a geographical indicators was considered as an act of
passing off. Now after the passing of this Act, registration
of a geographical indication is mandatory. Some of the
most famous Indian Geographical Indicators are Darjiling
Tea, Basmati Rice, Kanjeepuram sarees, etc.
This legislation was also to give effect to the obligations
India voluntarily assumed by becoming the member of
WTO TRIPS Agreement and Paris Convention on the Protection
of Industrial Property.
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2.
What is a Geographical Indication?
It is an Indication
which, identifies the goods with a particular geographical
location regarding the origin of the goods. It will
be available to agricultural goods, natural goods or
even manufacture goods. For a geographical indication
to be registrable, the goods should display a unique
quality, reputation or other characteristic attributable
to its geographical origin, such as the climate or soil
qualities, processing and production methods etc. It
is possible to cover even handicrafts and foodstuff
under the Act.
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3.
Can a geographical indicator be registered in the name
of an individual?
Normally, a geographical
indicator is a community or a group right. Hence it
is not possible to get Geographical Indication registration
in the name of an individual.
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4.
Who administers the registration of geographical indication?
A statutory body called Geographical
Indication Registry has been established under
the Act. The Registry maintains a Register of Geographical
Indications and the Register is maintained in 2 parts
viz, Part-A and Part-B.
Part A contains the essential characteristics of the
goods and the name of the Registered Owner.
Part B contains the rules relating to the registration
of the Authorized Users of that Geographical Indicator
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5.
What are the prohibitions against the registration of
geographical indications?
(a) Indications which are likely to deceive
or cause confusion.
(b) Indications which would be contrary to any law.
(c) Indications which contain scandalous or obscene
matter.
(d) Indications which would hurt the religious sentiments
of people.
(e) Indications which are generic in character.
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6.
What is the procedure for registration?
Any association of persons or organization
or Statutory Authority can apply for registration and
the application should contain:
a) A statement as to how the indication connotes specific
quality, reputation or other characteristic which, are
essentially due to the geographical environment, natural
and human factors, special methods of production, processing
or preparation, which takes place in the said geographical
area.
b) The class of goods sought to be covered by the registration.
c) The geographical map of the territory in which, the
goods originate.
d) Method of appearance of the geographical indicators
on the goods.
e) Particulars of the procedures of the authorized users
of the geographical indications.
A single application can be made covering the different
classes of goods and in that case, prescribed fee for
each class must be paid.
In the case of registration of foreign geographical
indications, the application should contain an address
for services located in India.
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7.
What happens to the application for registration in
the Registry of Geographical Indications?
The application may be accepted either absolutely
or conditionally. In case of refusal or conditional
acceptance of the registration, the Registrar shall
record in writing the grounds for refused or conditional
acceptance stating the reasons for such decisions.
After the acceptance of the application, the application
will be advertised in the Geographical Indication Journal
and within 3 months of such advertisement any person
can file an opposition proceedings against the registration.
The Registrar will forward the copy of the opposition
to the applicant and within 2 months of receipt of opposition
copy, the applicant should lodge a counter statement
against the opposition.
If the applicant fails to lodge the counter statement,
the application would be deemed to have been abandoned.
After this procedure is over, the parties are permitted
to submit evidence in support of their respective cases.
After the submission of evidence, the Registrar will
give an opportunity to the parties for an oral hearing
and thereafter the matter will be decided in a quasi-judicial
manner. Foreign entities wanting to lodge opposition
will be required to furnish security for costs.
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8.
Is it possible to amend and correct the entries in the
register of geographical indicators?
YES. Section 15 of the Act provides for making
corrections and amendments to the entries in the register
either before or after the registration of geographical
indications.
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9.
What is the duration of a geographical indications?
The initial Registration
of a Geographical Indication shall remain valid for
a period of 10 years each. A grace period of 2 years
has been provided for restoring the registration of
geographical indications that has lapsed due to non
payment of renewal fee.
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10.
What are the remedies available to the infringement
of geographical indications?
The law provides both civil and criminal
remedies.
Civil remedies include injunctions (Interim
and permanent), damages, delivery up of the infringing
goods for destruction and forfeiture of the goods that
bear false representation of an existing Geographical
Indication.
The criminal remedies may involve punishment
to the offender which can be a minimum mandatory sentence
of 6 months imprisonment and maximum of 3 years and
the minimum mandatory fine of Rs.50,000/- and a maximum
of Rs.2 lakhs. In case of subsequent convictions of
the same offence, the minimum mandatory sentence will
be one year imprisonment and fine of Rs.2 lakhs.
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11.
Is there a period of limitation for indication of criminal
cases?
The law provides that
the right to initiate a criminal case comes to an end
after the expiration of 3 years from the commission
of offence charged or 2 years after the discovery thereof
by the prosecutor, whichever is earlier. The infringement
of geographical indicator is a cognizable offence and
the investigation has to be carried out by an officer
with the rank of a Deputy Superintend of Police.
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