Table of Contents

Geographical Indication :An analysis............................................................................... 2

Defining Geographical Indications................................................................................2
A. Elements and Features of GIs under the TRIPS.........................................................3
B. Economic and Cultural bases for Protection of GI......................................................5
A. GIs Generally: Misleading the Public and Unfair Competition.......................................6
B. Geographical Indications of Wine and Spirits: Enhanced Protection................................7
Need for Protection of Geographical Indication (GI)..........................................................8
Application for GI.................................................................................................... 8
Qualifications for GI................................................................................................. 8
Registration for GI................................................................................................... 9
Muga Silk of Assam............................................................................................... 11
Banaras brocades and saris....................................................................................... 12
Malabar pepper..................................................................................................... 13
Vazhakulam Pineapple............................................................................................ 14
Suit and Relief for Infringement................................................................................. 16
Penalty for Offences............................................................................................... 16
Defenses against Infringement of Geographical Indications..................................................17
Criminal Remedies................................................................................................. 17
Civil Remedies...................................................................................................... 18
Case-Laws.............................................................................................................. 18
Imperial Tobacco Co.v. Registrar, Trademarks..............................................................19
PochampalliIkat Case.............................................................................................. 19
Tea Board, India vs. I.T.C. Limited............................................................................. 20
The question of beneficiaries............................................................................21
Appropriate Identification of products..............................................................22
Defining the characteristics..............................................................................22
Defining geographical boundaries....................................................................22
REFERENCES........................................................................................................ 24

Geographical Indication :An analysis

Introduction
A geographical indication is an indication or a sign which specifies the geographical origin of
the product and links it with the essential qualities that are present in the product due to that
place of the origin. It is mainly used to identify the agricultural, handicraft, manufacturing
goods from the particular territory which has developed a good will in the market due to the
special characteristics like temperature, humidity, soil etc. associated with the territory that
are unique, eg. Darjeeling tea. The geographical indication is generally owned by a
community which belongs to that particular location. A geographical indication can be a mark
defined by the words or numbers or may be combination of both. Goods or packages used to
indicate the place of origin of the goods. In international transaction, marks of origin include
marks of the country of origin and geographical indications.
Under the TRIPS Agreement, countries are under no obligation to extend protection to a
particular geographical indication unless that geographical indication is protected in the
country of its origin. India signed TRIPS agreement in 1995, in order to comply with the
TRIPS agreements India started giving protection for Geographical Indication from 15th
September 2003.

Defining Geographical Indications

Geographical indication is an identifier which associates a product to a particular region. 1
For example, Sarawak pepper of Malaysia and Thung Kula Rong-Hai Thai Hom Mali
Rice of Thailand are GIs. The TRIPS defines GIs in the following terms: ...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 geographical origin.2 In other words, GIs are badges of origin
that serve to identify the geographical source of goods, which grants a specifically
identifiable attribute to the goods. Thus, a given quality, reputation or other
characteristics of a good can each be a sufficient condition, ceterius paribus, for protection
as a geographical indication.3

1 WTO, Background and the Current Situation: Geographical Indications in General (Nov. 2008),
www.wto.org/english/tratop_e/trips_e/gi_background_e.htm.

2 TRIPS Agreement art. 22.1, supra note 2, at 1205.

3 Bernard OConnor, THE LAW OF GEOGRAPHICAL INDICATIONS 51 (Cameron May 2007), at

24.
A. Elements and Features of GIs under the TRIPS
The unique characteristic features of GIs under Article 22 of the TRIPS Agreement are as
follows:

1. Inclusive of appellations of origin 4 and indications of source5: Hai Hau Rice; Phu
Quoc Fish Sauce The definition of GIs in TRIPS is broader in its scope than appellations of
origin but narrow as compared to indications of source. 6 To illustrate, GIs may indicate
any of the aforementioned attributes in goods by means of words, phrases, symbols and the
like. However, appellations of origin are restricted to the geographical name of the
originating territory and relate only to the quality and characteristics of products. For
example, Hai Hau Rice and Phu Quoc Fish Sauce are appellations of origin from
Vietnam. On the other hand, indications of source extends to an indication referring
directly or indirectly to a country of origin and does not require the conditionalities as above. 7
In other words, an indication of source on a given product is merely subject to the condition
that this product originates from the place designated.8 There is no quality or characteristic
linkage. Nevertheless, the point remains that these two traditional concepts were instrumental
in fashioning the scope of geographical indications under the TRIPS.

2. Expressing Direct and Indirect Indications: Sabah Seaweed and 'Longjing Tea' :-Since,
GIs are indications which seek to identify the source, they can be both direct, i.e., the
geographical names per se, and indirect, i.e., indications expressed via names or symbols. 9 An
example of the former would be Sabah seaweed from Malaysia and the Thai Chaiya

4 Paris Convention for the Protection of Industrial Property, art. 1(2), Mar. 20, 1883, 21 U.S.T. 1583,
828 U.N.T.S. 305 [hereinafter Paris Convention]; Lisbon Agreement for the Protection of
Appellations of Origin and their International Registration, art. 2, Oct. 31, 1958, 923 U.N.T.S. 205
[hereinafter Lisbon Agreement].

5 Paris Convention art. 1(2) and 10, supra note 13; Art. 1(1), Madrid Agreement for the Repression of
False or Deceptive Indications of Source on Goods, Apr. 14, 1891, 828 U.N.T.S. 163 [hereinafter
Madrid Agreement].

6 Min Chiuan Wang, The Asian Consciousness and the Interest in Geographical Indications, 96
TRADEMARK REP. 906, 907 (2006).

7 WIPO, Geographical Indications: Historical Background, Nature of Rights, Existing Systems for
Protection and Obtaining Protection in Other Countries, at 4, SCT/8/4 (2002).

8 Priyanka Sardana and Vijay Sardan, Geographical Indications: Natural Competitive Advantage, at
http://www.pfionline.com/index.php/columns/ipr/122-geographical-indications-natural-competitive-
advantage.
salted eggs where both Sabah and Chaiya are the geographical names directly referring to
the products. On the other hand, Longjing tea also known as Dragon Well tea, is a variety of
roasted green tea from Hangzhou, Zhejiang Province in China but the name by itself does not
provide any geographical reference.

3. Comparison with trademarks: Badge of Origin but signifying Collective Manufacturers

Though the critical function of both is to serve as a badge of origin , a trademark only
identifies the manufacturer, not the geographical source. Article 15 of the TRIPS stipulates an
illustrative list of signs, which may serve as trademarks such as words including personal
names, letters, numerals, figurative elements and combination of colours. When read in
conjunction with Art. 1(2) of the Paris Convention, it seems that though the geographical
name of a region may serve to be a part of the trademark, marks which consist exclusively
of signs or indications, which may serve, in trade, to designate the...place of origin have
been explicitly refused protection.10 This is a way to prevent the registration of geographical
names, which do not signify a source or have not developed a secondary meaning in the
minds of the consumers. For example, Section 7(2) of the Thai Trademark Act B.E. 2534
stipulates that a mark shall be deemed distinctive if it does not have any direct reference to
the character or quality of the goods and it has not been prescribed as a GI by the Minister of
Commerce.

Article 22(3) of TRIPS further posits a connection between trademarks and GIs; it is seen as a
logical complement to Article 22(2) (a) by stretching forth the protection of GIs to the area of
trademarks.11 It recognises a positive obligation on member countries to refuse or invalidate
the registration of a trademark, which consists or contains a GI, which has the effect of
misleading the public as to the true place of origin.

4. GIs as Intellectual Property: Does it fit the bill? :- Under the TRIPS, GIs form a subset of
the corpus of intellectual property rights, but, as the foregoing analyses of the constituent
elements indicates, the rights protected appear to belong to a very unique public sphere

9 Carlos M. Correa, Protection of Geographical Indications in CARICOM Countries, at

http://www.crnm.org/documents/studies/Geographical%20Indications%20-%20Correa.pdf.

10 Paris Convention art. 1(2),

11 DANIEL GERVAIS, THE TRIPS AGREEMENT: DRAFTING HISTORY AND ANALYSIS 194
(Sweet & Maxwell, 2nd ed. 2003).
rather than in private.12 Thus, the beneficiary in the case of GIs is almost often an association
or group of manufacturers in the particular field rather than an individual producer. Further,
though other intellectual property branches are defined by the spatial and temporal factors,
GIs appear to be protected by uninhibited rights to exclude others perpetually. Thus, while
patents, copyright, trade marks and design rights have specific terms of protection, GIS are
not restricted by any such conditions. It is manifest that GIs are distinguishable from the
remaining branches of intellectual property like patents, copyright and trademarks. However,
even though the rationale for the incorporation of GIs into TRIPS remains hazy, this right to
exclude use on non-GI products is sanctioned by the international community on general
policy grounds to individual geographical areas so that they can sustain their products'
quality and local investments.13

B. Economic and Cultural bases for Protection of GI

The raison detre for the protection of GI have roots in economic and cultural justifications. 14
As aptly stated by CARROS, GIs serve as a tool for securing consumers loyalty by
establishing the link between products attributes and the geographical origin. In economic
terms, a geographical indication essentially permits producers to increase rents based on
product differentiation, that is, a form of monopolistic competition prevalent in the modern
economy where there are elements of both monopoly and perfect competition.

Secondly, the consumers mental association between the indication, the place, the goods, the
qualities or characteristics of the goods, and the producers elevates a geographic sign to the
level of a distinctive source identifier in that it functions to distinguish one producing
source from another producing source when used on particular goods. 15 Thus, as pointed out
by WIPO, false use of geographical indications by unauthorised parties is detrimental to
consumers and legitimate producers. While the consumers are induced with the belief that

12 Alberto F. Ribeiro de Almeida, The TRIPS Agreement, the Bilateral Agreements Concerning
Geographical Indications and the Philosophy of the WTO, E.I.P.R. 2005, 27 (4), 150-53, at 150.

13 Irene Calboli, Expanding the Protection of Geographical Indications of Origin under TRIPS:
Old Debate or New Opportunity?, 10 MARQ. INTELL. PROP. L. REV. 181, 203 (2006).

14 Frances G. Zacher, Pass the Parmesan: Geographic Indications in the United States and the
European Union Can There Be Compromise?, 19 EMORY INTL L. REV. 427, 431 (2005).

15 Amy P. Cotton, 123 Years at the Negotiating Table and Still No Dessert? The Case in Support of
TRIPS Geographical Indication Protections, 82 CHI.-KENT L. REV. 1295, 1295 (2007).
they are buying goods of a particular attribute, they are in effect duped with an imitation. This
harms the business and reputation of the manufacturers.

Thirdly, the significance of protecting GIs is also furnished by the cultural element. The
uniqueness vests in that the producer or manufacturer of the product is a collective, a group
that has some unifying inherent characteristic, trait or quality that it is trying to
protect.16Likewise, protection of geographical indications considers the traditions and number
of generations associated with production of the food or beverage. 17 Following such a notion,
Daphne Zografos, a leading commentator on the value and importance of Geographical
Indications in economic growth, argues that traditional cultural expressions in the form of
handicrafts may also be recognised under the ambit of GIs due to the symbolic connection
between the artisanal product and the influencing culture.18

Having examined the ambit of GIs under Article 22(3), we may now turn to an examination
of the current standards of protection under the Agreement.
Scope of Protection against Infringement
A unique feature of GIs under the Agreement is that there is a distinction between the levels
of protection accorded to goods generally and to wines and spirits. As a starting point, there
is a minimum standard of protection which applies to all GIs regardless of the nature and type
of goods. It is left to the individual member countries of the WTO to determine the most
appropriate method of protection, the basic premise being that a GI should not mislead the
public as to its true origin. A higher level of protection is conferred on wines and spirits
generally and an extra-additional protection for wine GIs. The use of GIs identifying wines or
spirits not originating in the place indicated by the GI is prohibited, even where the true
origin of the wines and spirits is indicated, or the GI is accompanied by expressions such as
kind, type, style, imitation or the like. It is not a necessary to show that the consumers might
be misled or the use constitutes unfair competition. In respect of wines, TRIPS provides for
16 Michelle Agdomar, Removing the Greek from Feta and Adding Korbel to Champagne: The
Paradox of Geographical Indications in International Law, 18 FORDHAM INTELL. PROP. MEDIA
& ENT. L.J. 541, 560 (2008).

17 Stacy D. Goldberg, Who Will Raise the White Flag? The Battle between the United States and the
European Union over the Production of Geographical Indications, 22 U. PA. J. INTL. ECON. L.
107, 108 (2001).

18 Daphne Zographos, Can Geographical Indications Be a Viable Alternative for the Protection of
Traditional Cultural Expressions?, in NEW DIRECTIONS IN COPYRIGHT LAW 37, 38 (Fiona
Macmillan & Kathy Bowrey, eds., 2006).
further protection for each GI for wines in the case of homonymous indications and
establishment of a multilateral registry for GIs for wines. Such a hierarchical system of
protection is evidence of the tussle between the old world countries who wanted higher
standards for all GIs and the new world countries who were not agreeable to the
proposition as the latter did not have any significant GIs to protect and therefore was not
ready to accept enhanced minimum standards.19

A. GIs Generally: Misleading the Public and Unfair Competition

Article 22 (2) provides a negative right of prevention rather than a positive right to use
the GI as is the case in trademark protection. The explication de texte may be the lack of any
registration system at the multilateral level. Member countries are empowered to envisage
legal means to allow interested parties to prevent (i) any use of a GI to mislead the public as
to the origin of the goods; and (ii) any use, which would be an act of unfair competition as
defined under Article 10 bis of the Paris Convention.

It is manifest that the provision did not purport to create an exclusive substantive right but left
it to the discretion of the member countries to implement in their national legislations. As a
result, countries provide the protection under different legal regimes, either operating alone or
in conjunction with each other, for example, laws under unfair competition, consumer
protection, protection of certification marks, sui generis laws ie, the Geographical Indications
of Goods (Registration and Protection) Act of 1999 provides for registration and protection of
GIs pertaining to India.

In the context of public confusion and unfair competition, TRIPS envisages safeguard
mechanisms in Articles 22(4) and 24(8). Consequently, the use of homonymous GIs is
prohibited even though literally true as to the territory, region or locality in which the goods
originate, they falsely represent to the public that the goods originate in another territory.
Similarly, Article 24 (8) applies where a persons name is similar to the geographical
indication in a manner, which has the effect of misleading the public.

Thus, the decisive factor in the protection of GIs is whether the public is being misled or
unfair competition is caused. This leads to different protection for the same GI in different

19Kasturi Das, SocioEconomic Implications of Protecting Geographical Indications in India, at

http://wtocentre.iift.ac.in/Papers/GI_Paper_CWS_August%2009_Revised.pdf.
countries. For example, basmati rice and Parmesan cheese are registered GIs in Europe, but
are considered generic terms in the US.20

B. Geographical Indications of Wine and Spirits: Enhanced Protection

Article 23 (1), on the other hand, envisages a higher level of protection for wines and spirits
and prohibits the incorrect use of geographical indications and additionally prohibits the use
of a corrective for example, like, style etc. Accordingly, it provides:

Each Member shall provide the legal means for interested parties to prevent use of the
geographical indication identifying wines for wines 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 expressions such as
kind, type, style, imitation or the like.21

Thus, it is a violation of Article 23 (1) if a wine is labelled as Bordeaux wine produced in

Hong Kong. It is manifest that the intention is to fashion a protection, which is akin to the
dilution-style protection for trademarks22 that is absent in the case of other GIs. This
differential treatment has attracted the wrath of critics for untenable systemic biases against
equally qualified producers of other goods.23

Need for Protection of Geographical Indication (GI)

Registering Geographical Indication is always beneficial as the owner can prevent others
from unauthorized usage or from commercializing of the registered product. However the
registration of GI is not mandatory in India, unregistered GI are protected under passing off
cases, but its always advisable to register the geographical origin as no further proof is
required.

20Rajiv Seth, Geographical Indications for the Skeptical Europe, at

http://www.delhiwineclub.com/guest_column/Geographical_Indications.aspx?serialwise=966.

21 TRIPS Agreement art. 23.1.

22 G.E. Evans and Michael Blakeney, The Protection of Geographical Indications after Doha: Quo
Vadis? 9 J. INTL ECON. L. 575, 581 (2006).

23 Kevin M. Murphy, Conflict, Confusion and Bias under TRIPS Articles 22-24, 19 Am. U. Intl L.
Rev. 1181, 1224 (2004).
 Application for GI
Geographical indication is generally owned by a community. Any organization or association
of people established under law can apply for geographical indication in prescribed format
indicating the interest of the producers of the concern goods.

Qualifications for GI
The following are the geographical indications that cannot be registered in India:
1. Things 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
2. Things which comprise or contain any matter likely to hurt the religious
susceptibilities of any class or section of the citizens of India
3. Things which would otherwise be disentitled to protection in a court
4. The use of which would be likely to deceive or cause confusion
5. The use of which would be contrary to any law for the time being in force
6. Things which comprise or contain scandalous or obscene matter
7. Things 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.

Registration for GI
An application shall be made in the prescribed format with the Form GI-1.

1. A registration of GI for any product shall be included in any one class; or

2. An application to register a GI for a specification of goods included in any class from
a convention country; or
3. A single application is required for the registration of the GI from any class; or
GI registry is located in Chennai in India, applicant must file an application at the Chennai
office. Along with it applicant must fulfill the various requirements and criteria defined in the
GI rules. The applicant must give the following details/ documents.
The Legal framework in India
As a party to the TRIPS Agreement, India is required to protect GI and hence in order to
fulfill that obligation, the Geographical Indications of Goods (Registration and Protection)
Act, 1999 was enacted. It may also be noted that India felt that some of its products have high
potential to benefit from GI registration and it was necessary to put in place a comprehensive
legislation for registration and for providing adequate protection for GI. For unless a
geographical indication is protected in the country of its origin, there is no requirement under
the TRIPS Agreement for other countries to extend reciprocal protection. The main benefits
which accrue from registration under the Act are as follows:

Confers legal protection to GI in India;

Prevents unauthorized use of a registered geographical indication by others;
Enables seeking legal protection in other WTO member countries.

From the perspective of a developing country, one of the best features of the Indian Act is the
comprehensive definition given of GI, whereby agricultural, natural and manufactured goods
all come under the ambit of GI. This is especially important in the Indian context considering
the wide variety of goods that is deserving of protection ranging from agricultural products
like Basmati, Darjeeling tea to manufactured goods such as Banrasi sari, Kolhapure chappals,
Chanderi silk etc. Section 11 of the Act provides that any association of persons, producers,
organization or authority established by or under the law can apply for registration of a GI.
Another important aspect of the Act is the possibility of protecting a GI indefinitely by
renewing the registration when it expires after a period of ten years. In the domestic context,
the Indian Act has tried to extend the additional protection reserved for wines and spirits
mandated by TRIPS to include goods of national interest on a case to case basis. Section 22.2
of the Act endows the Central Government with the authority to give additional protection to
certain goods or classes of goods. This is especially important in the developing country
context considering that we may not have wines and spirits to protect like the West but other
exotic niche products like teas, rice etc.

Section 25 of the Act, by prohibiting the registration of a GI as a trademark, tries to prevent

appropriation of a public property in the nature of a geographical indication by an individual
as a trademark, leading to confusion in the market. Also, according to section 24 of the Act, a
GI cannot be assigned or transmitted. The Act recognizes that a GI is a public property
belonging to the producers of the goods concerned; as such it cannot be the subject matter of
assignment, transmission, licensing, pledge, mortgage or any contract for transferring the
ownership or possession.

Impacts of GI registration in India: Some cases

A number of observers point out that of all the different types of intellectual property rights,
GI may be more amenable to the particular context of developing countries. GIs may
especially facilitate protection of the collective rights of the rural and indigenous
communities in their indigenous knowledge, ensuring that the entire community which has
preserved the knowledge and has passed it on with incremental refinement over generations,
stand to benefit from the knowledge and that this is not locked up as the private property of
one individual24. Other advantages of GIs are that the knowledge remains in the public
domain, the scope of protection is limited to controlling the class and/ or location of people
who may use the protected indication and the rights can potentially be held in perpetuity as
long as the product-place link is maintained 25. Also, holders of a GI do not have the right to
assign the indication, thus, preventing its transfer to non-locale producers.

Evidence on the socio-economic impacts of GIs in the Indian context are, however, limited
although anecdotal evidence suggests that GIs have significant implications for producers in
developed and developing countries26. Interestingly, the collective nature of GIs also brings to
the fore significant collective action related problems across various stages of organization
and governance.27 For example, a group of producers may take the initiative in the GI
registration process, while others not willing to join initially may join later thereby attempting
to free-ride on the efforts of the forerunners. In India, there are many GIs that are registered
in the names of some central or state government departments or bodies, yet there is no
homogeneity among those initiatives and involvements across states. A number of studies
have also found that GIs could lead to exclusion of many from enjoying the benefits. 28 Firms
with better bargaining positions may also end up making disproportionate share of the
economic value generated from securing protection.29

It is against this backdrop that our study has tried to assess the situation on the ground with
respect to a number of registered GIs, through indepth, field level case studies as well as
primary survey based on a standard questionnaire prepared for the purpose. Some of these

24 Sahai and Barpujari, 2007

25 Commission on Intellectual Property Rights, 2004

26 Jena and Grote, 2007

27 Das, 2009.

28 Gopalakrishnan (2007), Rangnekar (2009)

29 Rangnekar, 2004.
case studies include Muga silk of Assam, Banaras brocades and saris, Malabar pepper and
Vazhakulam Pineapple, all of which are registered GIs.

Muga Silk of Assam

Muga silk is a registered GI from the state of Assam. Historical evidence suggests that
Assams silk industry had reached the pinnacle of perfection by the 7th century A.D.
Banabhatta, the author of Harshacharita informs us that king Bhaskara Varma of Kamarupa
(ancient Assam) presented to Harshavardhana silken towels as silken and pure as the autumn
moons night...30 In the present day, muga silk constitutes the states most popular export
product after Assam tea.

The Patent Information Centre of the Assam Science Technology and Environment Council
(ASTEC) secured registration for muga in 2006, which is incidentally the first registered GI
from the north-eastern region. While ASTEC is the registered proprietor of the muga GI, till
date, there are no registered users. One to one interviews with weavers and silk traders in the
town of Sualkuchi revealed very low awareness about the GI protection of muga. While the
price of muga has been rising over the last few years, that has little to do with GI registration.
The reason for the high prices of the muga yarn, according to the various stakeholders
interviewed, are diminishing area under muga cultivation owing to rubber cultivation,
diseases at the cocoon stage, loss incurred due to the outdoor nature of muga rearing, and so
on. Nevertheless, higher prices have not been able to encourage the farmers to hold on to
muga cultivation. As a result, muga has become almost three times more expensive,
compared with other similar varieties of silk. Apparel with 100 per cent muga yarn is rarely
produced these days, except to cater to the state emporiums, or for special orders. Muga is
often blended with imported tussar silk from China or with other indigenous silk yarn such as
pat. Meanwhile, as observed in the field, power-loom is getting increasingly popular for
muga weaving, dealing a further blow to handloom weavers. In an interview, an applicant for
registered use of muga observed that fabric woven on the power-loom has certain advantages
and could be the only way out for entrepreneurs like him as many weavers are leaving the
profession owing to un-remunerative wages. Regarding the setting up of a quality control and
inspection mechanism, as required by the law, ASTEC has proposed employing the services
of the Seri Bio Lab of the Institute of Advanced Study in Science and Technology, Guwahati,

30 Sahai and Barpujari

for quality control. An inspection body is yet to be constituted. Hence, at this stage, even after
six years of registration, GI in muga cannot give any guarantee of quality or authenticity.

Banaras brocades and saris

Banaras brocades and saris secured registration under the GI Act in September 2009, with
the application filed by nine organisations viz. Banaras Bunkar Samiti, Human Welfare
Association (HWA), joint director industries (eastern zone), director of handlooms and
textiles Uttar Pradesh Handloom Fabrics Marketing Cooperative Federation, Eastern UP
Exporters Association (EUPEA), Banarasi Vastra Udyog Sangh, Banaras Hath Kargha Vikas
Samiti and Adarsh Silk Bunkar Sahkari Samiti. The weaver community predominantly
constitutes poor Muslims and Dalits and the structure of production is based on a hierarchy of
kothdars (wholesale dealers), master weavers and other weavers. With the objective of
understanding the actual impact of registration on the ground level, TERI researchers
conducted a multi-stakeholder consultation at Varanasi interacting with registered users,
Banarasi Sari traders, bunkars (weavers), government officials, local buyers, NGO
representatives, cottage manufacturing units etc. The consultations indicated that the Banarasi
sari industry is impacted by a host of variables in terms of raw material and labour issues, the
socio-economic aspects of the region, and, to some extent, the pitfalls of excessive
liberalisation and legislation.31 The changing economic and market situation has resulted in
reduced income for weavers who cannot even meet their basic needs, causing malnutrition
and widespread poverty throughout the traditional weaver community. Such destitution and
despondency among the weavers has forced them to commit suicide or has precipitated
employment shifts, as evidenced by MGNREGA 32 benefits. It could be gathered from the
fieldwork that the promise of geographical indication protection has not curbed the menace of
fakes. Machinebased cheap product imitations continue to be sold. Cheap raw material
imports have led to the sale of what are known as Kela saris, in the name of Banarasi saris.
These use banana tree resin to create threads which are then polished to give the look of
silver or gold thread. Chinese imitation saris, pegged at much lower prices, are flooding the
market. Moreover, there is a tenfold rise in the number of operating power-looms in the
district of Varanasi itself, although certain other studies put higher estimates. Most power-
loom owners have been producing cheap imitation products in large numbers to meet the

31 Dwivedi and Bhattacharjya, 2012.

32 Mahatma Gandhi National Rural Employee Guarantee Act

growing demand, with computerised designs. Enforcement under the legal regime is
frustrated further through absence of will on the part of GI holders to take action against the
imitators. Despite the stakeholders being aware of the deleterious impact of sales of fake
saris, complex market dynamics enforces silence among all concerned.

Malabar pepper
Malabar pepper is famous for its quality. It is classified under two grades garbled and un-
garbled. History is replete with instances of foreigners coming to the Malabar Coast to trade
in Indian spices in general and pepper in particular. It is stated that the exorbitant price of
pepper during the middle ages, a trade which was monopolized by the Italians, forced the
Portuguese to seek a sea route to reach India. Pepper is used as a spice and it has also got
medicinal properties. Malabar pepper is cultivated in the geographic regions comprised in the
Malabar region of the erstwhile Madras Presidency. Now these areas comprise in the states of
Kerala, Karnataka and Tamil Nadu. Malabar pepper accounts for around 25 per cent of the
entire worlds supply of pepper. This pepper is unique for its sharp, hot and biting taste.
Highly aromatic, with a distinctive fruity bouquet, it has the perfect combination of flavour
and aroma. In order to protect the brand value of Malabar pepper, the Spices Board applied
for a GI registration and after completing the formalities the registration was granted. As
pepper is exported in huge quantities, there was a feeling that the GI tag would give better
legal protection against counterfeit products, more visibility to the brand etc. None of the
respondents interviewed by TERI researchers were aware of any infringement action initiated
against any of the counterfeit producers. There was also a general feeling that it is the traders
who reap benefit out of the GI tag and not the farmers. The general refrain was that farmers
do not get any extra benefit from the GI tag, which is also corroborated by findings from the
TERI survey discussed later. The general mood in the sector at the time of field visit was a
worry over the declining price in pepper. There were demands that there should be a complete
ban on future trades in pepper.

Vazhakulam Pineapple
There was considerable interest shown among the academia and practicing lawyers about the
GI tag for Vazhakulam Pineapple. Some interviews were conducted by TERI researchers as a
result of this. Pineapple is produced as a commercial fruit crop in India. The main pineapple
producing states are Kerala, West Bengal, Assam and Tripura. Vazahkulam, known as the
Pineapple City, is located in Muvattupuzha taluka of Ernakulam district. The pineapple
cultivation in that region started in the forties. It is a variety called Mauritus which is
cultivated in this region. The pineapple produced in this region has a distinct taste. It is very
sweet and not very juicy. Because of these features, there is a huge demand for Vazhakulam
Pineapple.

From 1985 onwards, many farmers started taking up large scale commercial cultivation of
this pineapple. Because of less juice content in the fruit, this variety of pineapple is mainly
consumed as a fruit. These distinctive features were noticed in pineapples grown in an area
roughly falling within 60 kms in and around Vazhakulam. These areas fall under the revenue
districts of Ernakulam, Idukki, Kottayam and Pathanamthitta. However 90 per cent of the
pineapple is produced in Vazhakulam area only. The farmers attribute the distinctive taste of
the pineapple to the soil in the region. The main demand for Vazakkulam pineapple comes
from the state of Kerala only. The export market is mainly the Gulf countries.

As the fruit has to be consumed within 4 -5 days of harvesting, exporting does not make
much of commercial sense. In order to protect the brand name, GI application was jointly
filed by the Pineapple Farmers Association, Nadukkara Agro Processing Company Ltd.
(NAPCL), and the Kerala Agricultural University. The Pineapple Farmers Association is a
registered society under the Charitable Societies Act. It was formed in 1990 mainly to address
the marketing issues.

More than 500 pineapple farmers are members of this Association. The main objectives of the
association are: to unite and strengthen the pineapple farmers; to create awareness on farming
and marketing issues; to provide assistance in seeking financial and technical help from
various government and non-government agencies; and to engage in promotion activities.
The Nadukkara Agro Processing Company Ltd. is a public limited company with a
shareholding pattern of 70 per cent held by farmers and 30 per cent by the state of Kerala.
NAPCL is involved in the production of many pineapple based products like pineapple juice,
pineapple fruit candies among others. The Kerala Agricultural University was instrumental in
providing the scientific details needed for the GI registration and is involved as the inspection
body to regulate the quality standard parameters. The purpose of going for a GI registration
was for brand value. No case of infringement has come to the notice so far. The office bearers
of the farmers association were very candid in explaining that the major benefit of the GI
registration was the greater visibility of the brand. Most of the farmers are big farmers who
have taken land for lease. The lease land mainly comes from the rubber plantations, during
their replantation time. In the first 34 years of replantation, pineapple is cultivated as an
inter crop. These plantations would stretch from 50 100 acres. It is cultivated as an
intercrop in coconut farms too. There are farmers who have resorted to pineapple cultivation
as the main crop. There was a feeling among the representatives of the farmers association
that as GI is intended to help the marketing of the product as it brings in more brand
visibility, the farmers are not directly benefitted. The general feeling to be gathered after
interaction was that direct benefit for farmers was not seen as the purpose of GI tag.

Infringement of Registered Geographical Indications and Appeals

A registered geographical indication is infringed by a person who, not being an authorised
user thereof uses such geographical indication by any means in the designations or
presentation of goods 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 misleads the persons
as to the geographical origin of such goods. Hence the infringement of registered G.I. occurs
if a person:
Uses the G.I. on the goods or suggests that such goods originate in a geographical
area other than the true place of origin of such goods in a manner which misleads the
public; or
Uses the G.I. in a manner that constitutes an act of unfair competition; or
Uses another G.I. to the goods in a manner, which falsely represents to the public that
the goods originate in the territory, region or locality in respect of which such
registered G.I. relates.

Suit and Relief for Infringement

A suit for infringement of a registered G.I. is to be instituted in a District Court having
jurisdiction to try the suit. The court can grant to the plaintiff relief in the form of injunction
and, at the option of the plaintiff, either damages or account of profits together with any order
for destruction or erasure of infringing labels and indications, if necessary.
However, the court shall not grant relief by way of damages or account of profits, if the
defendant satisfies the court that he was unaware and had no reasonable ground to believe
that the GI complained of was on the register in the name of plaintiff and that when he
became aware of the existence and the nature of the plaintiffs right in the geographical
indications, he forthwith ceased to use it.
Appeals against an order or decision of the Registrar or the rules framed under the Act lie to
the Appellate Board, established under the Trade Mark Act, 1999. The aggrieved person may
prefer an appeal to the Appellate Board normally within three months from the date on which
the order or decision is communicated. After this period, no appeal is admitted. A person will
be considered to have committed offence under the G.I. Act in the following circumstances:
i) falsely applying geographical indication;
ii) falsifying a geographical indication.
In a prosecution for falsifying or falsely applying a geographical indication to goods, the
burden of proving the assent of the proprietor lies with the accused.

Penalty for Offences

Under Section 67 of the GI Act, the civil remedies include injunctions (ex parte or any other
interlocutory order) as well as damages or an account of profits, at the option of the plaintiff.
This may be coupled with an order for the delivery-up of the infringing labels and indications
for their destruction or erasure. In 2006, the Delhi High Court in the case of the Scotch
Whisky Association v. Golden Bottling Limited,33 granted the plaintiff a permanent injunction
as well as damages of Rs. 5,00,000/- under Sec. 67 of the GI Act. It also asked the defendant
to bear the expenses of the litigation which was Rs. 3,10,000/-. In this case, Scotch Whisky
had a GI tag and the plaintiffs contended that the defendants were infringing on their GI tag
by selling its whisky under the name Red Scot. The Court held that the plaintiffs intellectual
property rights had been infringed upon and granted them relief under the GI Act.
Sections 39 and 40 of the GI Act, state that the penalty for applying false geographical
indications and for selling goods to which false geographical indications are applied is
imprisonment which may be between six months to three years and fine which may be
between fifty thousand to two lakh rupees.
Moreover, there are other remedies available to the rights holder under the Intellectual
Property Rights (Imported Goods) Enforcement Rules, 2007.34 These rules recognize
geographical indication as intellectual property and the GI Act as intellectual property laws.
Under these rules, the rights holder can record its registered GI with the Customs authorities.
Once the procedure under these guidelines are complied, the Customs authorities have the
power to seize imported goods at the border, if there is prima facie evidence or reasonable

33 Scotch Whisky Association v. Golden Bottling Limited , 2006 (32) PTC 656 Del.

34 Accessed from the web site: http://www.wipo.int/wipolex/en/text.jsp?file_id=201652, visited on

4-04-2014
grounds to suspect that they are infringing on the geographical indication of the rights holder,
without obtaining any orders from the Court.

Defenses against Infringement of Geographical Indications

The remedies available for protection of geographical indications may broadly be classified
into Criminal remedies & Civil remedies

Criminal Remedies
The Geographical Indications of Goods (Registration and Protection) Act, 1999 contains
penal provision for violation of various provisions relating to geographical indications given
below:

(i) Falsifying and falsely applying geographical indications to goods.35

(ii) Selling goods to which false geographical indications is applied.36
(iii) Falsely representing a geographical indication as registered.37
(iv) Improperly describing a place of business as connected with the geographical indications
registry.

(v) Falsification of entries in the register.

The punishment prescribed for the aforesaid offences varies from six months to three years
imprisonment and a fine of not less than Rupees fifty thousand but may extend to Rupees two
lakh. However, the court for adequate and special reasons in writing may impose lesser
punishment The Act38 also prescribes for enhanced penalty for second or subsequent
conviction.
The Act 39 empowers the Court to direct the forfeiture to Government of all the goods and
things by means of or in relation to which certain offences mentioned therein have been
committed. The Act empowers the Deputy Superintendent of Police to take cognizance of

35 Sections 38 and 39

36 Section 40

37 Section 42

38 Section 41

39 Section 46
geographical indications offences and may search and seize things and articles involved
therein

Civil Remedies
The suit for infringement has to be filed in court not inferior to that of a district court having
jurisdiction. In any suit for infringement of geographical indications the defendant pleads that
registration of the geographical indications relating to plaintiff is invalid, the court trying the
suit shall:

(i) if any proceedings for rectification of the register to the geographical indications relating
to plaintiff or defendant are pending before the Registrar or the Appellate Board, stay the suit
pending the final disposal of such proceedings;

(ii) if no such proceedings are pending and the court is satisfied that the plea regarding the
invalidity of the registration of the geographical indications relating to plaintiff or defendant
isprima facie tenable, raise an issue regarding the same and adjourn the case for a period of
three months from the date of the framing of the issue in order to enable the party concerned
to apply to the Appellate Board for rectification of the register.40
Case-Laws
The Indian judiciary has played a significant role, particularly in the absence of any enforced
legislation, in protecting GIs. They have entertained petitions in cases of infringement of GIs
that misleads the consumer as to the place of origin or constitutes unfair competition. India
has also taken legislative measures by enacting the Geographical Indications of Goods
(Registration and Protection) Act, 1999 along with the Geographical Indications of Goods
(Registration and Protection) Rules, 2002 which on implementation would go a long way to
protect GIs and provide a model for other countries to follow.41
Imperial Tobacco Co.v. Registrar, Trademarks42:-

40 Sections 57 and 66

41 Suresh C. Srivastava, Geographical Indications and Legal Framework in India, Economic and
Political Weekly, September 20, 2003.

42 AIR 1977 Cal 413 at 422

The Calcutta High Court explained to the following concept of geographic term
namely: Geographical terms and words in common use designate a locality, a country, or a
section of country which cannot be monopolized as trademarks; but a geographical name not
Used in geographical sense to denote place of origin, but used in an arbitrary or fanciful
way to indicate origin or ownership regardless of location, may be sustained as to be a valid
trademarkA geographical name according to its ordinary signification is such mark
inherently or otherwise incapable of registration subject to minor exceptions.
PochampalliIkat Case43
Pochampally is a small town in Nalgonda district of Andhra Pradesh, a handloom cluster is
known for its very unique Ikat44 design for centuries. It has about 5000 weavers who weave
the handloom with traditional design called Ikat. With the objective of converting this
uniqueness into commercial value, the Textiles Committee launched a cluster initiative under
its Cluster Development Programme to facilitate the local associations Pochampally
Handloom Weavers Co Op. Society Ltd, an autonomous society registered under the society
Act 1860 and Pochampally Handloom Tie & Dye Silk Sarees Manufactures Association an
association established under the law are the two bodies that are responsible for production
and marketing of PochampallyIkat.
The Directorate (Handlooms & Textiles) Government of Andhra Pradesh, Weavers Service
Centre (WSC), APTDC, NABARD have been involved in the process of GI registration. The
services of APTDC were used for filling before GI registry and NABARD has provided funds
under its DRIP to cover the costs involved.45 The famous Pochampallyikat tie-and-dye sari
has won Intellectual Property Rights protection, more than a year after its first applied. It is
the first traditional Indian craft to receive this status of geographical branding. The design
won protection in the Geographical Indications category. This will protect the Pochampally
handloom sari from unfair competition and counterfeit. An estimated one hundred thousand

43 Accessed from the web site: http://www.aiacaonline.org/pdf/policy-briefs-geographical-

indication-pochampally-ikat.pdf,visied on 04-4-2014.

44 The term Ikat has its origin in Malay Indonesian expression Mangikat meaning to bind, knot or
wind around. PochampaalIkat, the technique of resist dyeing is mostly done with geometrical
designs, involves the sequence of tying (or wrapping) and dyeing exposed sections of bundled yarn to
get a pre-determined colour scheme prior to weaving. The patterns formed on the yarn are then
configured into the woven fabric.

45 Gautam. K and Bahl. N Geographical Indications of India: Socio-Economic and Development

Issues, Policy No. 2, 2010, All India Artisans and Craft workers welfare Association (AIACA).
weavers in Andhra Pradesh may benefit from the granting of Intellectual Property Rights to
the traditional tie-and-dye fabric, which has seen falling demand due to competition from
cheaper fabrics copying from their design.
There was a law suit filed under GI Act on infringement of GI of POCHAMPALLI IKAT. In
this case plaintiffs are manufacturing POCHAMPALLI IKAT fabric made of natural
materials such as cotton or silk or a combination of both, having designs that are evocative of
the diffused diamond or chowka design. But the defendant was selling some sarees by using
false GI HYCO POCHAMPALLI. To protect their legal rights the plaintiffs filed a suit
against defendants for injunction restraining infringement of GI, passing off, unfair,
competition. After hearing contentions from both the parties the court said the adoption of
the mark HYCO POCHAMPALLI by the defendant is blatantly dishonest
and malafide attempt to derive unfair advantage by creating the impression that the
Defendants products have some connection, nexus, association, affiliation with or
endorsement by the plaintiffs. Eventually, the verdict was not delivered and the case was
settled out of court after the errant party pleaded innocence on the account of his ignorance
about the Act. Finally the suit was decreed in favour of plaintiff.

Tea Board, India vs. I.T.C. Limited46

The dispute is on DARJEELING between Tea Board of India and ITC Limited. The Tea
Board asserts exclusivity over Darjeeling and ITC maintains that there is more to
Darjeeling than the tea that is grown there. Tea Board, India (registered proprietor of the GI
Darjeeling) took ITC Limited to court for the use of the mark Darjeeling for its Lounge at
the hotel in Calcutta. Under the application for interlocutory injunction, concerned with the
existence of a prima facie case of the Tea Board against ITC based on the Trade Marks Act,
1999 (TM Act) and The Geographical Indications of Goods (Registration & Protection Act,
1999 (GI Act), ITC sought to cut the claim contending that grievances with respect to rights
breached under the GI Act is only restricted to goods and not against any services. ITC
wanted the GI Act to be understood as providing protection only to goods against goods and
not having room enough to allow a complaint by a registered proprietor of a GI against any
service. The argument put forth was that the GI Act seeks to protect indications with respect

46 GA No. 3137 of 2010, CS No. 250 of 2010, also

see:http://spicyipindia.blogspot.com/2011/04/breaking-news-darjeeling-still-lounges.html , visited on
04-4-2014.
to goods only, identified on account of quality or reputation or other characteristics
attributable to their geographical origin and cannot be extended to any services.
The Court concluded the Tea Boards prima facie failure in proving violation of its registered
certification trademark in terms of sec 75 of the TM Act as it had not registered its name as
holder of the mark DARJEELING in respect of hotel business but for the purpose of
certification of tea as one grown in Darjeeling where benefit of Sections 28 and 29 of the TM
Act is not available.

The decision raised interesting ramifications on the GI marketplace in India, as the Calcutta
High Court held that the word Darjeeling is not the exclusive right of the Tea Board, and
decided the case in favour of the Kolkata hotel ITC Sonar and its Darjeeling Lounge.
Although the situation of GI protection at the domestic level is somewhat manageable, the
same is not true in regards to protection of GI at the international level. 47 For example, on an
average around 4 crorekgs of tea per annum is being sold globally as Darjeeling tea,
whereas the production of authentic Darjeeling tea is around 90 lakh kgs only.
Very recently master craftsmen from Varanasi are being lured to China to produce these
imitations with cheaper Chinese silk due to which imitations of the world renowned
Banarasi sarees are flooding the Indian market over the past several years, particularly in the
Surat region of the Indian state of Gujarat. These imitations cost only onetenth of the price
of an original Banarasi saree, and therefore posing a threat to the competition in India. 48 It is
for this reason that large section of weavers in Varanasi are now forced to look for other
means of livelihood.
Critical Analysis
An analysis of the legal framework as well as experiences with registered GIs, both from the
case studies and the survey indicate the presence of a number of challenges. An important
dimension of GI is that it does not protect knowledge or technology as such. It only protects
the name or indication. This essentially means that the famous Banarasi sari can be produced
anywhere in the world but it cannot be named Banarasi sari. For a price-conscious
consumer, it might not make much sense to buy GI certified products at a premium, if the
same product is available elsewhere. Some of the other challenges are given below.

47 Geographical Indications in the Indian Context: A Case Study of Darjeeling Tea, ICRIER
Working Paper No 11, September 2003.

48 Accessed from the web

site:http://www.bwcindia.org/Web/Awareness/LearnAbout/Silk.html, visited on 4-04-2014.
The question of beneficiaries
One of the main problems is the ambiguity in the definition of the term producer in the
legislation which does not distinguish between real producer, retailer or dealer. As a result of
this, the benefits of the registration may not percolate down to the real producer as is seen in
the case studies of muga silk and the Banarasi sari and as also attested to by the respondents
of our survey.

Appropriate Identification of products

Currently, government activities related to GI is concentrated mostly on registering GI
products where the state governments are acting in haste. Identification of GI based products
and their registration is happening without adequate due thoroughness. Groups filling for GI
registration do not assess the commercial prospect of a GI product in the domestic and
international markets or the potential of such registration in contributing towards the future
growth of the product as well as the socio-economic implication for the communities
involved in the supply chain.

Defining the characteristics

As Rangnekars study of Goa feni (2009) elucidates, GI status could lead to the creation of
clubs (connoting exclusion of many others), with the use of a GI permissible only by those
who adhere to the specification, thus, being similar to club rules. Gopalakrishnan et.al (2007)
also observes that as of now, traders enjoy more economic benefits than the actual producers
of GIs and hence, recommends that the right to use the registered GIs must be confined to the
actual producers of the GIs from the identified geographical area and only with their
permission, the traders and others involved in the trade could use the GIs.

Defining geographical boundaries

Defining the exact geographical boundaries of a product is often a big challenge, particularly
in the context of non-agricultural products. For example, Banarasi saris are woven not just in
the city but in the rural areas of the same district as well as in some neighbouring districts.
Similarly, Baluchari sari, another GI registered product, originated in a village called
Baluchar in the district of Murshidabad. But the village does not exist anymore as it has been
swallowed by a river. With time this form of weaving was almost lost and was revived later.
However, in the process of revival, weavers of Bishnupur in the district of Bankura played a
larger role than the weavers in Murshidabad. These two places are about 200 Kms apart.
Hence, the question is which region should be the legitimate one in GI registration. Since the
state government agencies have taken a lead role in the process of registration, they have
tended to include the entire state for registration for GI which may not be appropriate.

Conclusion

Intellectual property is an integral part of international trade. Since an intelligent and

effective use of knowledge always contributes in the national economic prosperity. Given its
commercial potential, the legal protection of GI assumes enormous significance. Without
such protection, competitors not having legitimate right on a GI might ride free on its
reputation. Such unfair business practices result in loss of revenue for the genuine right
holders of the GI and also misleads the consumers. Moreover, such practices may eventually
hamper the goodwill and reputation associated with the GI. In order to rule out its misuse and
to tap the potential economic and socio economic benefits emanating from this IP, it is
essential to ensure an appropriate legal protection for GIs at the national as well as the
international level. Infringement of GIs is an issue which is still generating controversies and
the outcome of such controversies are extremely important from the point of view of a
developing country like India, which has in its possession of number of world famous
Geographical Indications.Finally the need of the hour is that the Government of India should
create awareness to rural producers regarding registration of GIs so that their products will be
marketed globally it will generate huge foreign exchange to exchequer.
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