Decision (September 2015) 42(3):293–306

DOI 10.1007/s40622-015-0084-2

RESEARCH PAPER

The management of geographical indications: post

registration challenges and opportunities
K. D. Raju . Shivangi Tiwari

Published online: 4 June 2015

 Indian Institute of Management Calcutta 2015

Abstract India passed the Geographical Indications reached to 227 in number. The present paper re-
of Goods (Registration & Protection) Act, 1999 in examines the challenges ahead in implementation of
compliance with the Trade Related Aspects of Intel- the Act and to suggest further amendments to the Act
lectual Property Rights (TRIPs) Agreement under the for better protection to Indian indigenous knowledge
World Trade Organisation (WTO) Agreements which and reputation of products originating from India. It
concluded in 1995. Article 22 of the TRIPs Agreement also tries to identify what is further required to reap the
defines Geographical Indication as ‘‘the indications benefits of registration and problematic areas like who
which identify a good as originating in the territory of can be a right applicant of a GI application, Part-B
a Member, or a region or locality in that territory, registration of beneficiaries, marketing of GI products,
where a given quality, reputation or other character- maintaining quality of the product and counterfeiting
istic of the good is essentially attributable to its and enforcement mechanism. It is argued that India
geographical origin’’. Many developing countries like requires a coordinated effort of Central and State
India has enacted legislation for greater and stronger Governments, proprietors of GI and beneficiaries to
protection of GI in order to uplift the economic protect and promote Indian GIs in future.
condition of the poor people those who contribute to
many key products of export. Since the Act has been Keywords Benefit sharing
Geographical
passed 15 years back and India registered its first GI, indication
Developing nations
India
Economic
Darjeeling tea in 2004, the total registrations now have development

The Author has registered seven GIs from Odisha and

implementing a project on ‘‘Post—Registration Measures on
the GIs, Sambalpuri Bandha Saree & Fabrics and Bomkai Introduction
Saree & Fabrics from Odisha’’.
India has always been a land of international trade and
K. D. Raju (&)
Rajiv Gandhi School of Intellectual Property Law, IIT
export from ancient times.1 From handicrafts to
Kharagpur, Kharagpur, India textiles, jewelry to metallurgy, there has been a long
e-mail: rajukd@gmail.com history of export. According to some artisans India
S. Tiwari
MSc Plant Biotechnology, TERI University, New Delhi,
1
India Padma Mohan Kumar, India - The Roaring Trade Partner of
e-mail: shivangitiwari.1990@gmail.com Yore, http://www.gatewayforindia.com/articles/tradeyore.htm.

123
294 Decision (September 2015) 42(3):293–306

may have been the original home of textiles printing authenticating their quality, was done by the local
and the export of these printed fabrics to China can be legislators.
dated back to fourth century B.C.2 Indian textile items These geographical marks are defined worldwide as
from Gujarat were exported to Arab countries. Carpet ‘‘Indication of Sources,7’’ ‘‘Appellations of Origin,8’’
weaving and export were peculiar during the Mughal and ‘‘Geographical Indications (GI)’’. Paris Conven-
period.3 In sixteenth century Portuguese trading port tion9 was the first multilateral agreement which
was established in Calicut and Cochin where the provided for protection of ‘‘indication of source’’
export of various varieties of spices took place.4 Since and ‘‘appellations of origin.’’ It however, does not
that time there has been a strong connection between a define ‘‘Indication of Source’’ or ‘‘Appellations of
product and a region that had a great impact in the Origin’’. Article 1(2) of the Convention states that
international trade as the product is known to the ‘‘The protection of industrial property has as its object
outside world in the name of the region or a country. patents, utility models, industrial designs, trademarks,
There was always a demand for a product originating service marks, trade names, indications of source or
from a particular place with a special reputation. This appellations of origin, and the repression of unfair
demand was due to the superiority of the product competition.’’
belonging to a specific geographical area which was The conclusion of the Uruguay Round of nego-
believed to be present due to the distinctness of various tiations became the turning point in the history of the
factors such as geography, soil, climate, water or entire intellectual property protection regime.10 For
specific skills and craftsmanship. For example, Scotch the first time the IP protection came under the
whisky belongs to Scotland is famous from 1495 is umbrella of the WTO regime since the establishment
now protected under the TRIPs regime.5 With the of the General Agreement on Tariffs and Trade
increasing demands and the rise in the economy, the (GATT) in 1947. Before the TRIPs Agreement, GI
merchants started branding their products with a was protected under Article 1(2) of the Paris Conven-
certain mark that delegated the place of origin of the tion 1883 and Madrid Agreement for the Repression of
product. The description or the branding was done by False or Deceptive Indications of Source on Goods of
using symbols, logo or even the pictures of local 1891 and later on in the 20th century it was protected
animals, landmarks, buildings or well-known local under the Lisbon Agreement for the Protection of the
personalities of the particular region. Later on, these
marks were regarded as the symbol of quality,
guarantee and faith by the customers. Thereby, stating
7
that the marks indicating the geographical region were Agreement for the Repression of False or Deceptive Indica-
tions of Source on Goods, 1891 (The Madrid Agreement
the earliest type of the trademarks used by the provides for false and deceptive Indication of Sources). See
merchants.6 To safeguard the commercial status and http://www.wipo.int/export/sites/www/madrid/en/legal_texts/pdf/
to maintain the quality of these goods, establishment madrid_agreement.pdf, last visited on 14.12.2014.
8
of a system of labeling of the approved local goods The Lisbon Agreement for the Protection of Appellations of
made by the original producers with a mark (e.g. Origin and there International Registration (1958) defines
Appellation of Origin in Article 2(1) to mean ‘‘the geographical
hallmarks and wool marks used for goods made up of name of a country, region, or locality, which serves to designate
precious metals and cloth quality respectively) a product originating therein, the quality and the characteristics
of which are exclusively or essentially due to the geographical
environment, including human and natural figures’’. See at
2 http://www.wipo.int/treaties/en/text.jsp?file_id=285838, last
Stuart Robinson: A History of Printed Textiles.
3
visited on 14.12.2014.
History of India: IndiaTradePromotion.com http://www. 9
Paris Convention for the Protection of Industrial Property was
indiatradepromotion.com/history-indian-trade.html.
4
one of the first multilateral treaties protecting the intellectual
The Portuguese Empire in the East (c.1500–1600), The Flow property. Article1 deals with the establishment of the union and
of History http://www.flowofhistory.com/units/west/12/FC82. scope of industrial property. Full text available at http://www.
5
History of Scotch Whiskey, Scotch Whiskey Association wipo.int/treaties/en/text.jsp?file_id=287556, last visited on
http://www.scotch-whisky.org.uk/understanding-scotch/history- 10.12.2014.
of-scotch-whisky/. 10
Uruguay Round of trade negotiations started in 1986 and
6
McCarthy C and Devitt BM (1979) Protection of geographical ended in 1994 which lead to the establishment of the World
denominations: domestic and international, 69 T.M.R.197. Trade Organization (WTO) Agreement.

123
Decision (September 2015) 42(3):293–306 295

Appellation of Origin and their International Regis- economic function of GI protection is to maintain the
tration of 1958. goodwill and reputation of the product in the market
and thus expanding the access to the market for better
revenues. Different countries have their discrete
GI protection under the TRIPs agreement objectives for getting GI protection. Where the
European Union (EU) on one hand used GI as a tool
Geographical indication protection is one of the in order to consolidate the reputation, market niche
categories of intellectual property item included under and market exports keeping in mind both the quality
Article 22 of the TRIPs Agreement. It defines and the quantity of the agricultural products,12 coun-
Geographical Indication as ‘‘the indications which tries like Costa Rica13 have built up a certain
identify a good as originating in the territory of a mechanism for benefit sharing after the GI Registra-
Member, or a region or locality in that territory, where tion. This has not only led to an increase in the income
a given quality, reputation or other characteristic of the of coffee growers but has also led to the infrastructure
good is essentially attributable to its geographical development of the places which are registered.
origin’’.11 Article 22(3) states that members must The first GI registered from India is ‘‘Darjeeling
‘‘refuse or invalidate the registration of a trademark Tea’’ in the year 2004, which is world famous for its
which contains or consists of a geographical indication aroma and known as the black tea from India. The Tea
with respect to goods not originating in the territory Board of India has also applied for the registration of
indicated if use of the GI of such a nature leads to the words ‘Darjeeling’ and ‘Darjeeling logo’ under the
mislead the public with the true place of its origin’’. It Act. This tea is produced by approximate 80 tea
means that there must be a link between the product gardens in the valley of Darjeeling in the State of West
and the original place of production. Not only the Bengal. In order to provide legal protection in India the
agricultural products but any product that can be Tea Board of India registered the ‘Darjeeling logo’ and
attributed to human factors found in the product’s also the word ‘Darjeeling’ as certification trade marks
place or origin, such as specific manufacturing skill (CTMs) under the (Indian) Trade and Merchandise
that can be registered as in the case of Mysore Saree. Marks Act, 1958 (now the Trade Marks Act, 1999).14
Handicrafts are best qualified to be registered as GIs as GIs and trademark are distinct signs to identify a
in India this sector is well developed and with highest particular product. But considering their objective they
number of registrations and many more are to be are different in protection of a product. Trademark
exploited. The standards of Article 22 are qualified informs a consumer about its source of goods or
under Article 23 which provides for additional services and from which company it specifically
protection for GI related to wines and spirits. originates. GI specifically indicates and identify a
good originating from a particular place. Trademark
can be licensed but GI cannot be licensed to anybody.
GI protection in India Appellation Origins (AO) are also special GIs protect-
ed under the Lisbon Agreement. A name of the product
Many developing countries like India have enacted connected with a place in AO. In both AO and GI there
legislation Geographical Indications of Goods (Regis- should be a qualitative link between the product and
tration & Protection) Act, 1999 for greater and place of origin. Sometimes Certification Mark can also
stronger protection of GI with an objective of uplifting become GIs like in the case of Colombian Coffee. The
the economic condition of the poor people those who
contribute in many key products of export. The prime 12
Information obtained from United Nations Economic and
Social Commission from Asia and the Pacific (UN ESCAP). See
11 http://www.unescap.org/pdd/publications/apdj_16_2/4_jain.pdf,
Agreement on Trade-Related Aspects of Intellectual Prop-
visited on 10.03.2014.
erty Rights, April 15, 1994. Marrakesh Agreement Establishing 13
the World Trade Organization, Annex 1C, art. 22–23, Legal Café de Costa Rica http://www.cafedecostarica.com/home.
instruments—results of the Uruguay Round, 33 I.L.M. 1197 html.
14
(1994) [hereinafter TRIPS Agreement], available at http://www. S.C. Srivastava Protecting the Geographical Indication for
wto.org/english/docs_e/legal_e/27-trips.pdf, last visited on Darjeeling Tea https://www.wto.org/english/res_e/booksp_e/
10.03.2014. casestudies_e/case16_e.htm.

123
296 Decision (September 2015) 42(3):293–306

Indian registration and trend is to be discussed in order Table 1 State-wise distribution of GI registration in India
to understand the participation of different states and S. no. Names of the states No. of GI registrations
its approaches in protecting its indications.
1 Andhra1Telangana 23
2 Assam 03
GI registrations in India 3 Bihar 05
4 Chhattisgarh 03
With the emergence of the Geographical Indication of 5 Goa 01
Goods (Registration and Protection) Act, 1999, India 6 Gujarat 09
propelled forward to safeguard the commercial status and 7 Haryana 01
to maintain the quality of these goods, by establishing a 8 Himachal Pradesh 06
system of labeling the approved local goods made by the 9 Jammu and Kashmir 03
original producers. State governments are taking initia- 10 Karnataka 41
tives to safeguard the interest of its people by getting their 11 Kerala 21
GI registered, be it for the exquisite work done by the 12 Madhya Pradesh 06
people, a traditional practice over the generation or any 13 Maharashtra 10
form of a traditional knowledge also. A total of 227 GIs 14 Nagaland 01
have been registered so far in India since 2004 and around 15 Odisha 16
139 Indian applications and 126 foreign applications are 16 Punjab 01
filed with the GI Registry in Chennai. The following 17 Rajasthan 10
table15 provides for the initiatives taken by the respective 18 Tamil Nadu 24
state governments in India (Table 1). 19 Uttar Pradesh 15
It can be clearly seen that the states from the 20 West Bengal 09
southern part of the country are more active with
regard to the registration of their GIs. Where Kar- Data Source GI Registry as of 1st January 2015
nataka has the maximum GI registered of number 41 Bold indicates the top 5 states with highest GI registrations in
India
followed by Andhra with 26, Tamilnadu with 24 and

Kerala with 21 GI registrations. States like Odisha (16)

WB and Uttar Pradesh (15) are also taking more initiatives
UP
7%
4% about their GI registration. States are taking efforts to
Karnataka
20%
create more awareness among the people on the
Tamilnadu
benefits of GI protection. Unfortunately, states in the
11% Northern part of the country are less active about GI
AP
registration, there are hardly any GI registrations from
Rahasthan
5% Punjab 12% the North Eastern States and hence, are lacking
0% Odisha Assam adequate protection to traditional goods and products
7% 1% originating from these parts of the country.
Bihar
Nagaland
2% The lack of awareness amongst the people and
0%
Kerala Chhasgarh initiatives from the state govt. is jeopardizing some of
Maharashtra
10% Gujarat 1% the traditional and highly economical products, For
5% MP Goa
HP 4%
3% J&K 0% e.g. ‘‘Chilika Curd’’ is one such dairy product prepared
3% Haryana
1%
0% with a traditional technique in cup shaped bamboo
basket using milk of Chilika buffalo by the ethnic
Fig. 1 Statewise contribution of granted GIs. Source GI
registry data up to 1st January 2015
community of Chilika, Odisha.16 It is known and

15 16
Data obtained from Geographical Indications Registry, Nanda DK, Singh R (2013) Chikila curd—a potential dairy
Intellectual Property India Website. See http://ipindia.nic.in/ product for geographical indication registration. Indian JTradit
girindia/, visited on 14.03.2014. Knowl 12(4):707–713.

123
Decision (September 2015) 42(3):293–306 297

tested to have an exceptionally extended shelf life as Food stuff

Texle
3%
compared to the other curds. Experiments have shown Manufactured 1%
the presence of a diverse range of microbes which 8%

helps in increasing the shelf life of this curd. Curd is

considered to be to the oldest Indian fermented dairy
product17 which is also used in the treatment of
diarrhea. The economics of India depends on Agri-
culture and its products and thus Chilika curd would Agricultural
22%
make a potential GI. Many such products in various
parts of the country are hidden and not explored well. Handicra
66%
Proper awareness is the need of the hour in order to
explore this tremendous variety of products as poten-
tial GIs (Fig. 1).
India is a country rich in culture and heritage and
hence, with the increased demands in the handicraft Fig. 2 Sector-wise distribution of GI registration in India. Data
and textiles industry, it is important for the govern- Source GI registry as of 1st January 2015
ment to preserve the skills, the exquisite work and the
revenue earning capacities of these artisans and skilled
Part-A registration procedure
people pertaining to a particular geographical area and
conferring to them a monopoly to manufacture the
An association of persons or producers as a group or
same. India has its products registered in 5 categories
any authority should represent the interest of the
namely Agricultural, Handicraft, Manufactured, Food
producers as a whole to file the GI application and they
stuff and Textiles. Following chart18 provides for the
must file an affidavit as to how they claim to be
percentage division of each category for the GIs that
represent the interest.20 The application must mention
have been registered (Fig. 2).
the special characteristics of the product and its
Despite India being an agrarian country, handicrafts
production procedures or cultivation methods. A
lead when it comes to GI registration with a maximum
statement of case is to be prepared and filed with the
of 66 % followed by agricultural GIs of 22 %. The
application. The region map to be certified by the
registration makes handicrafts and textiles industries
authorities. The uniqueness of the product will decide
as one of the promising revenue generating industries
the qualification of registration. The application will
in the coming future after agriculture but when it
be examined by the GI Registry in Chennai and may be
comes to extracting the economic benefits out of GI,
asked for more clarification and details and fulfil the
one need to acknowledge the fact that GI registration
deficiencies. The consultative group with experts will
or protection for that matter doesn’t sell itself. For a
consider the statement of case and a proper represen-
product to sell and achieve a certain status in the
tation from the applicant. The decision will be
market proper branding and quality assessment has to
communicated to the applicant and further appeal
be done so that the consumer is able to find a product-
can be filed to the IPAB by the applicant. The
place link.19
application will be published and opposition to
registration will be accepted. It is the duty of the
applicant to file counterstatement and defend his case.
Once the application has been accepted by the
17
Sarkar S (2008) Innovations in Indian fermented milk Registrar, registration will be done and the certificates
products—a review. Food Biotechnol 22(1):78–97.
18
will be issued.
Data obtained from Geographical Indications Registry,
Intellectual Property India Website. See http://ipindia.nic.in/
girindia/, visited on 14.03.2014.
19
Kasturi Das, Socio Economic Implications of Protecting
Geographical Indication in India http://wtocentre.iift.ac.in/
20
Papers/GI_Paper_CWS_August%2009_Revised.pdf, visited on http://ipindia.nic.in/girindia/RegistrationProcess.htm, visit-
14.03.2014. ed on 14.04.2015.

123
298 Decision (September 2015) 42(3):293–306

Who can be an applicant in Part-A and Part-B Applicants-Registered GIs

registration Universies
2% Foreign C.Gov.Agencies
Section 11 of the GI Act provides that ‘‘any asso- 3%
15%
ciation of persons or producers representing the
interest of the producers of the goods’’ can be an
applicant for registration of a GI in Part-A. As a
community right or a group right, GI application is to
be submitted by the interested persons of producers Co-
Op.&Sociees
forming an association. The association can be in the
39%
form of co-operative societies, societies registered
State-
under Societies Registration Act of 1860 or asso- Agencies
ciation formed under any other lawful authority. But in 41%
an analysis of the applications reveals that 41 % of the
applications are filed by State Government Depart-
ments and State agencies. 15 % applications are filed
Fig. 3 Category of applicants. Data Source GI registry as of 1st
by Central Government agencies further constitute a
January 2015
total of 56 %. Co-operative societies and associations
filed only 39 % of the granted GIs so far. In some of
the cases Universities are the applicants, such as registrations giving proprietor an edge over the
Kerala Agricultural University filed an application for beneficiaries in terms of any monetary benefit arising
‘‘Central Travancore Jaggery’’ and Anand Agricultur- out of the product.
al University, Gujrat, filed for ‘‘Bhalia Wheat’’ from Part-B registration is provided in Section 7(3) of the
Gujarat. These Universities and State agencies are Act. It is noticed that in few GIs very less number of
neither the producers nor association of producers. beneficiaries are registered under Part-B. As per
The increasing number of such applications undermi- information from the GI office a total number of
nes the very spirit of the GI Act. In such cases the 2073 Part-B applications have been filed so far against
original producers are going to be registered in the few GIs registered. This number is a fractional one on
Part-B and they can only become beneficiaries and the background of lakhs of beneficiaries are available
cannot own their own indication (Fig. 3). on the product. If we consider a single item,
Whereas, the main objective of this registration Sambalpur bandha saree and fabrics, there are more
should be to provide ownership to those who are the than one lakh weavers are spread on the four districts
prime producer of the product. Therefore, in every of Odisha. But recently the Odisha Government has
application, the governmental agencies should play a taken an initiation to register only 30 beneficiaries
role of a mediator and facilitator in filing the under Part-B registration of this item. It is interesting
applications rather becoming the proprietors of GIs to note that not even a single Part-B application has
themselves which doesn’t help benefit the real been filed against Darjeeling tea even though the
producers. Moreover, in some cases, the GI propri- proprietor, the Tea Board has included 80 plantations
etors have nothing to do with the geographical area from the area for the authorized production of the
and the producers. For example the Leather Research famous Darjeeling tea. Generally people are not
Institute in Chennai filed application for the famous GI interested in registering themselves as beneficiaries
‘‘Kolhapuri Chappals’’ from Maharashtra, thousands because no actual benefit is going to the weaver or
of kilometers away from the actual producers. Another producer of these goods. Neither in the Act nor in any
application for ‘‘Leather Toys of Indore’’ was filed by policy for benefit sharing mechanism for the better-
the Development Commissioner (Ministry of Handi- ment of the producer community. Without actual
crafts), New Delhi. If the GI Registry promotes this monetary or non-monetary benefits, people may not be
kind of application, finally, there won’t be any interested to register themselves as beneficiaries under
connection between the Proprietor under Part-A Part-B registration. The possible other reasons may be
registration and beneficiaries under Part-B summarized as follows:

123
Decision (September 2015) 42(3):293–306 299

• There is no incentive for the beneficiaries to the product. Marketing a GI product requires more
register under Part-B. efforts and it should contain the economic, social and
• The procedures for registration are unknown to tourism aspects. Considering the cultural importance
beneficiaries. associated with the products. Following steps can be
• The proprietors have less interest in including taken to improve the market strategy:
more and more on its fold.
1. Create an organization at every State level to
• Lack of awareness is a common reason.
manage GI system. Governance of the organiza-
• Financial constraints for completing the procedure
tion should include all stakeholders including
is also an impediment.
governmental agencies that can help the producers
• Lack of expertise in most of the States in India is
in advising in documentation, Part-A registration,
another barrier.
Part-B registration, marketing and benefit sharing
as a single agency of all GI products.
Possibly State Governments can take up the initial lead
2. The Organization must have a single point of
in Part-B registrations with proper awareness pro-
collective consultation on rule making, process-
grammes and administrative set up for benefit sharing
ing, decision making, product commercialization,
which may attract the beneficiaries.
marketing and dispute resolution.
3. The core of all GI systems is its reputation. Hence,
Branding and marketing of GI products the representatives of all members of the value
chain should be part of the organization. Collec-
GI products are facing origin linked quality issues as tive initiatives can increase the benefits and
their counterfeits are competing in the market reduc- decrease the cost in marketing GI products.
ing the reach of the original product to the public. Each 4. The organization can formulate strategies for
and every GI product have a specific market and if this production systems and marketing strategies after
geographical-origin linked quality product can be consultations. Thus the organization can manage
translated into market potential and sales, this will and control production systems and quality control
immensely benefit the producers. Proper marketing on the product by technical assistance and inno-
can reduce product failures and reduce the risk of vation in the processing and quality of the product.
business and can generate sufficient income for each 5. Reduce the cost of individual producers like small
group in the marketing ladder. Many of the products scale industries. This can be done by the District
have logo as well included in the applications Industrial Centers by initiating the marketing
including the first GI registered in India, i.e. Darjeel- strategies.
ing tea. But in most of the GI products there is less 6. On the marketing side, increase the bargaining
emphasis on branding and marketing of products power of local producers in the supply chain and
Other countries are actively promoting their prod- the value chain should be expanded with col-
ucts in the international market. But India has taken laboration of Universities, marketing agencies
little effort to market its famous products like and exporters.
Darjeeling tea or Mysore silk within or outside the 7. Formation of a consortium of all state level
country. Around 80 tea gardens have been recognized organizations and GI proprietors at the federal
by the Tea Board of India within the territory of level will protect all GIs in India and abroad.
Darjeeling Tea. But none of the tea gardens are
registered under Part-B. Most importantly, Tea Board, India has to come up with policy guidelines for the
the proprietor of the GI has not taken any measures to proper implementation of the Act, failing which, India
use its logo registered. In a preliminary market survey may lose an opportunity in the world market to
revealed that many brands of Darjeeling tea is showcase the Indian GIs. It is need of the hour to
available in the market, but none of them are using propose rules and policies for orienting the GI system
the registered logo and there is no mechanism to check towards economic, social and sustainability of each GI.
whether all these brands are selling tea originating The Indian products which are economically
from the geographical area thus fooling the public of important are many but some of them are mentioned

123
300 Decision (September 2015) 42(3):293–306

here. Darjeeling Tea is the first GI registered in India quality of the product. It is easy to market a quality
with a huge potential at international market and the product according to the requirement of the con-
Tea Board of India, who is the proprietor of the GI sumers. Output of the quality product depends on the
filed many cases against countries like Japan for practices of manufacturing among all providers. A
registration of the Darjeeling logo mark, namely, common quality policy will help the farmers and other
Darjeeling women ‘serving tea/coffee/coca/soft producers to maintain a quality product from the same
drinks/fruit juice’ in the Japanese Patent Office region. The quality policy should link the product and
(JPO) on 29 November 1996.21 Similar cases were geographical origin, production and process methods.
filed against France, Russia and US. India also The distinction between two products from the same
opposed the registration of Darjeeling in other coun- category also depends upon the specific quality linked
tries like Germany, Israel, Norway and Sri Lanka as to a particular geographical region. The quality or
well. Other category of product include textiles & uniqueness of the product must be essentially or
handicrafts as a single item like: exclusively originating from a particular geographical
area which includes natural and human factors such as
Pochampally Ikat (Andhra Pradesh)(GI Regn No. 4)
climate, craftsmanship of the producer, soil quality or
Gadwal Sarees (Andhra Pradesh) (GI Regn No.
local skill of the people. The production and process
137)
should take place within the demarcated area of the
Uppada Jamdhani Sarees (Andhra Pradesh) (GI
region. For e.g., The Darjeeling tea must be produced
Regn No.122)
and processed in the demarcated area of map and the
Banaras Brocades & Sarees (UP)(GI Regn No. 99)
same variety of tea produced in other part of the world
Lucknow Chikan Craft (UP)(GI Regn No. 119)
cannot be named after the registered name. It means
Paithani Saree & Fabrics (Maharashtra)(GI Regn
that the reputation of the product must depend upon
No. 150 &153)
the geographical origin as these geographical condi-
Khandua Sarees & Fabrics (Odisha)(GI Regn No.
tions cannot be replicated under any circumstances
136)
and in any lab. The geographical conditions of a
Pipli Appliqué Work (Odisha)(GI Regn No.
particular place marks as a authentication for the
86&108)
quality of the product as there is no counterfeit to these
Balaramapuram Sarees & Fine Cotton Fabrics
conditions
(Kerala)(GI Regn No. 152)
Section 11(2)(a) of the Act provides that a state-
Kasaragod Sarees (Kerala)(GI Regn No. 170)
ment to the effect of quality of the product to be stated
Kuthampully Sarees (Kerala)(GI Regn No. 179)
in the application. Rule 32(1)(6) provides that the
Chendamangalam Dhoties & Set Mundu (Ker-
manufacture of the goods must have specific quality
ala)(GI Regn No. 225)
and reputation. Rule 32(1)(6) (c) stipulates that a
Sambalpuri Bandha Saree & Fabrics (Odisha) (GI
mechanism to be made to ensure standards, quality,
Regn No.208)
integrity and consistency or other characteristics
should be maintained by the producers. Usually an
There are hundreds of other GI products having a
inspection mechanism of all stakeholders is made in
market potential and the above named ones are only
each application. But how they are going to ensure the
some of them.
quality of each product is not clear from the Act. If
thousands of producers are involved in a product then
quality maintenance of each product is a herculean
Quality issues
task. The traditional element is an additional character
for the purpose of GI registration. If the name does not
Quality and uniqueness of the GI products makes them
refer to the geographical area and unique character, it
unique and the reputation is mainly depend upon the
cannot be registered as a GI. It means that quality of
the product have a serious bearing on the geographical
21 name and the product to be registered. The following
S.C. Srivastava Protecting the Geographical Indication for
Darjeeling Tea https://www.wto.org/english/res_e/booksp_e/ measures can be taken by different governments for
casestudies_e/case16_e.htm. maintaining the quality and reputation of GI products:

123
Decision (September 2015) 42(3):293–306 301

1. A code of practice should be developed for each The Tea Board of India filed a case against ITC
GI product and an independent quality monitoring Ltd., a hotel chain in India against using the name
body to be formed by the Central Government. ‘‘Darjeeling’’ to a lounge in a Hotel, Sonar in
2. This independent agency will be responsible for Kolkata.24 Tea Board filed the case under the Trade
auditing and adherence to code of practice appli- Mark Act and GI Act. Tea Board is the registered
cable to each GI item. proprietor of the GI ‘‘Darjeeling Tea’’ and ‘‘Darjeeling
3. To take action to improve the performance and logo.’’ ITC argued that Darjeeling is protected under
value of the products. the GI Act only to goods and not applicable to
4. No product should be exported without quality services. The Calcutta High Court held that the name
checking and certification according to the GI ‘‘Darjeeling’’ is not the exclusive right of the Tea
application process. Board and concluded in favor of ITC hotel, Sonar. It is
interesting to note that all over the world, around 4
crore kg of Darjeeling Tea is sold. But all the
Darjeeling tea plantations together produce only 98
Enforcement mechanism
Lakh kg authentic Darjeeling tea per annum.25 It is
also an open truth that lot of Chinese ‘‘Banarasi Saree’’
The demand for quality products always benefits the
is flooding in the market which undermines the famous
consumers all over the world.22 The GI protection
Indian Saree in the market for one-tenth of original
encourages fair competition between the producers
Indian price.26 Lack of coordinated effort to find out
and help consumers, giving them information on the
the source of these counterfeited products and lack of a
specific characteristics of the products. Imitation and
GI enforcement mechanism enables the counterfeiters
duplication are serious problems to the original GIs in
to exploit the market.
the market. Section 39 and 40 of the GI Act provides
Section 67 of the Act provides for civil remedies
that in the case of infringement/false indication of a
include injunction as well as damages. The court can
GI, involving punishment of imprisonment for a term
also order for destruction of such infringing labels and
which shall not be less than 6 months and may extend
erasure. In the case of Scotch Whisky Association v.
to 3 years and with fine which shall not be less than 50
Golden Bottling Limited,27 Delhi High Court granted a
thousand which may extend up to 2 lakh rupees.
permanent injunction in favor of the petitioner and
Unfortunately, apart from few cases like Pocham-
awarded damages of Rs. 500,000/- under Sec. 67 of the
palli Ikat and Darjeeling tea, no other case has been
GI Act and to pay a litigation cost of Rs. 310,000/-
filed by Indian GI proprietors in the domestic market
.against the Indian infringer of a GI. In this case the
so far. Pochampally Ikat is a registered GI in India by
Indian company was selling its whisky in the name of
‘‘Pochampally Handloom Weavers’ Coop. Society
‘‘Red Scot’’. The court recognized that violation of
Ltd’’, an autonomous society registered under the
intellectual property rights are not in accordance with
Societies Registration Act 1860 and ‘‘Pochampally
the TRIPs agreement and domestic laws.
Handloom Tie & Dye Silk Sarees Manufactures
Association’’ an association established under the
law, are the two bodies that are responsible for 23
Kumar Gautam & Nupur Bahl, Geographical Indication
production and marketing of Pochampally Ikat. In this Pochampally Ikat http://www.aiacaonline.org/pdf/policy-
case the respondent produced and marketed a product briefs-geographical-indication-pochampally-ikat.pdf.
24
in the name of ‘‘GI HYCO POCHAMPALLI’’ to Sumathi Chandrasekharan, Darjeeling Tea still Lounges in
derive mala-fide benefit accruing from the GI Pocham- Kolkata, says HC http://spicyip.com/2011/04/breaking-news-
darjeeling-still-lounges.html.
pally Ikat. The suit was settled outside the court and 25
Dr. P. Sree Sudha, Protection of Geographical Indications
withdrawn the name from the market.23 (GIs) from Indian Perspective http://lawmantra.co.in/
protection-of-geographical-indications-gis-from-infringments-
an-indian-perspective/#_ftnref25.
26
22
Protection of Geographical Indication, Designation of Origin Indrajit Hazra, Is you Saree a Chinese Banaresi, Hindustan
and Certificates of Specail Character for Agricultural and Times http://www.hindustantimes.com/business-news/is-your-
Foodstuffs. http://ec.europa.eu/agriculture/publi/gi/broch_en. saree-a-chinese-benarasi/article1-215657.aspx.
27
pdf, visited on 18.01.2015. 129 (2006) DLT 423, 2006 (32) PTC 656 Del.

123
302 Decision (September 2015) 42(3):293–306

With the government support producers can en- of a country, or a region or locality in that territory,
force, promote or defend28 their GI product in the where a given quality, reputation or other character-
following manner: istic of such goods is essentially attributable to its
geographical origin, and in case of manufactured
• Financial support from the NGOs/state govern-
goods where one of the activities of either the
ment for the post registration branding of the GI
production or of processing or preparation of the
products of a particular area.
goods concerned takes place in such territory, region
• Vigilant market inspections in order to keep a track
or locality, as the case may be.’’
of any sort of infringement occurring.
At present there is no Benefit Sharing mechanism in
• Usage of advance technology like Radio Frequen-
the GI Act due to which the beneficiaries are deprived
cy Identification to track down the product through
of the benefit arising post registration as it doesn’t
the supply chain of the product globally.
reach the grass root level. The need of the hour is an
• Constant communication between the representa-
emphasis on building up a strong benefit sharing
tives of the supply chain from each level in order to
model so that the benefit reaches the producers or
bring about any improvement in order to uplift the
beneficiaries. GI will serve as a tool for the social and
sale of the GI product.
economic development only when there is an overall
• Regular quality assessment to ensure the tradition-
improvement in the living structure of these producers
al aspects of manufacturing.
be it there life style, quality education or a better
• Involvement of media, newspapers and internet for
infrastructure for work. Availability of the counterfeits
the publicity of the GI product for better branding
for most of the products due to an advance in the
of the product.
technology becomes a problem for the producers,
• Producer level mechanism for identification of
since most of the people pursuing the profession over
counterfeited products will help the enforcement
generations are not educated enough due to their
agencies to take action against violators.
involvement in the profession at a young age in order
• The GI Rules 2002 to be amended to include more
to support their families.29
executive action against infringers with penal
provisions.
Jeevani: a model for benefit sharing

Benefit sharing The benefit sharing mechanism followed in the

famous case of the drug ‘‘Jeevani’’ for has proved to
Benefit sharing refers to sharing of benefits or be one of the highly promising benefit sharing models
revenues arising out of the promotion and develop- for a developing country like India. Jeevani is a drug
ment out of an indigenous product arising from that is made out of a plant now known as Arogyap-
textiles, handicraft, manufacturing, agriculture or pacha. This plant and its fruit have been used as an
any other industry. immunity booster by a tribe in Kerala known as Kani
The Geographical Indications of Goods (Registra- tribe. Over several years it has been used as a means of
tion & Protection) Act, 1999 aims at providing the their traditional knowledge.
registration and protection of geographical indications The entire story of Kani access and benefit sharing
related to goods in India. Section 2(e) of the act model initiated in the year, 1987 where a team from
defines ‘‘geographical indication,’’ in relation to All India Coordinated Research Project on Ethan
goods, as an ‘‘indication which identifies such goods biology reached there and observed this extra ordinary
as agricultural goods, natural goods or manufactured property of this plant, fruit of which was consumed by
goods as originating, or manufactured in the territory the Kanis who accompanied as guides while they were
on a tour to the forest. On investigating and with the
28
help of the tribal people they were able to extract and
Kumar Gautam & Nupur Bahl, Geographical Indications of
India, Socio-Economic and Development Issues http://www.
29
aiacaonline.org/pdf/policy-briefs-geographical-indications-india- Mashelkar RA (2001) Intellectual property rights and the
socio-economic-development-issues.pdf, visited on 14.03.2014. Third World. Curr Sci 81(8):955.

123
Decision (September 2015) 42(3):293–306 303

prepare a drug which they named Jeevani. Later Arya co-ordinate with State Management Commit-
Vaidya Pharmacy Coimbatore (AVP) which is the tees and to constitute an expert technical
largest Ayurveda manufacturing company was given committee.
the license to market and sell this drug. This drug went • The central GI Management Committee
on to be classified under health promoting group of should consist of heads of the State Commit-
drugs. tees, representatives DIPP, representatives of
Kani tribe being the prime beneficiaries availed the GI Registry and representatives of beneficiary
benefit by commercialization of this drug. The first Societies.
agreement was signed between the Tropical Botanic • Every state must have a GI Management
Garden and Research Institute (TBGRI) and AVP in Committee to keep a track of the all the GIs
1996 which was valid for a period of 7 years with a from that particular state
license fee of Rs. 1,000,000 and a royalty which was to • Members of the state GI Management Com-
be paid at a rate of 2 % for 10 years. This agreement mittee may include representatives of the
was later improvised focusing on increment in the cooperative societies or the associations work-
benefit for the tribe. The new agreement was signed ing on various GIs of that region, representa-
between Kani, TBGRI and AVP in the year 2006 tives from state government, and economic
which is yet to be implemented. It accompanied a experts.
license fee of Rs. 2,000,000 with a royalty of 4 % to be • Technical experts should be included in the
paid for 10 years.30 Management Committee in order to conduct
The Kani tribe till date is being benefitted by this an inspection of various corporations in an
whole mechanism of benefit sharing as the money of orderly manner so as to insure the quality of
royalty goes to a trust named as The Kerala Kani the products is not compromised.
Community (Samudaya) Welfare (Kshema) Trust • Cooperative societies should work at a block
which was registered on 12 November 1997. This or district level to manage the small and
way their traditional knowledge has helped them built medium clusters of the growers or the
up a better standard of living and better quality life. weavers.
• The committee should be actively involved in
spreading the awareness regarding the emerg-
Prospective model for benefit sharing of GIs ing technologies related to the particular GI
amongst the common people so that they can
The study suggests certain prospective measures that be equipped with the latest technologies.
can be taken in order to make sure the benefit reaches • The committee should understand the demand
to the grassroots level. These measures can be taken of the market and should be able to come up
for a developing nation like India to ensure that the with innovative marketing strategies (for E.g.
reputation and the quality of the GI registered product use of certified marks with indication of origin
remains intact and the benefit reaches to the benefi- in the case of Darjeeling tea) in order to
ciaries further uplifting their socio-economic status. expand the access to the market, so that better
Following measures can be taken into consideration revenues can be obtained.
for implementing a strong benefit sharing model in • This way the State Management Committee
India. can not only keep a check over the quality of
the products but also increase the market reach
1. Constitution of GI Management Committee:
of these products ultimately leading to the
• A Central GI Management Committee should increased profits.
be constituted by the Central Government to
2. Local Geographical Indication Fund

30
• Every GI Management committee should have
See at http://piipa.org/files/PIIPA_World%20Bank%20Semi
a local GI fund.
nar%20Proceedings%20on%20The%20Role%20of%20IP%
20in%20Poverty%20Alleviation-Reduction.pdf, visited on • These local funds can be supported by private
10.03.2014. organization by contribution.

123
304 Decision (September 2015) 42(3):293–306

• These funds can be used to secure the income • Royalties collected can be used for the welfare
of the workers (i.e. growers, producers, market of the members.
representatives etc.) irrespective of the market • These societies must adapt to the infrastruc-
fluctuations. This can be done by pre and post ture compatible with the environment for
funding the entire process of goods sustainable development of the GI in future
production. (Fig. 4).
• These funds can be used in order to incorpo-
4. Monitory and Non-monitory Benefits to the
rate the upcoming technologies in the produc-
beneficiaries:
tion of the goods for an improved qualitative
and quantitative production. • Since a tribal community or any local com-
munities’ economy is dependent on their
3. Formation of Societies
traditional and indigenous knowledge, ex-
• Societies should be registered under the Soci- ploitation of it should be well paid off. For
eties Registration Act,31 1860 in order to this, a fair amount of license fee should be
manage horizontal clusters of GIs. charged depending on the economic potential
• Members of the societies should include of the product obtained from the indigenous
representatives from the horizontal and verti- communities.33
cal clusters and marketing expert who has the • Along, with the license fee, a fixed royalty
required knowledge of the market and help should be paid to the holders of of the
obtain and increase the target market. registered GIs; this royalty should not be
• This would help in the efficient and smooth reduced even if the market doesn’t perform
functioning of the clusters as there would be well.
constant improvement in the production • A certain share should be paid to the benefi-
methods. ciaries that arise out of the commercial sale of
• There should be a proper supply chain32 for the product.
every product that arises out of a particular • Every community holding or is involved in
Geographical area, with representatives at any traditional practice (like weaving of
each level of the vertical clusters i.e. from Sambalpuri saree) or is involved with the
growers/producers to the industrial production of an area specific product should
representatives. have a society or trust, through which proper
• Weavers or producers should send their prod- channelization of the monitory benefits can
ucts to these societies and in return these take place.
societies should provide them with the raw • Non- monitory benefits34 should be given
material at lower prices. which may include development in the infras-
• Further these societies should assess the tructure or social development in terms of
demands of the market and supply the prod- providing for better education and job oppor-
ucts accordingly. tunities to the local community.
• The beneficiaries registered under the Part-B • State likelihood programs should be built
registration under the GI Act to be included as which link the societies/communities with
the workers of this society. various health and medical facilities.
• All the products to be routed through the • Food and livelihood security benefit securing
society so that the quality, quantity authenti- the basic living standards of the communities
cation of the product can be made. should be provided.

33
As seen in the case of Kani Tribe, See http://www.cbd.int/
31
Societies registration Act, 1860 http://www.mca.gov.in/ financial/bensharing/india-kanis.pdf, visited on 10.03.2014.
Ministry/actsbills/pdf/Societies_Registration_Act_1860.pdf. 34
Case Study Mali, The Contribution of Religious Entities to
32
Café de Costa Rica http://www.cafedecostarica.com/home. Health in Sub Saharan Africa http://www.arhap.uct.ac.za/
html. downloads/ARHAPGates_ch7.pdf.

123
Decision (September 2015) 42(3):293–306 305

Fig. 4 The management

Central GI Management Heads of State Management
model
Committee Committees

Rep. of DIPP

Rep. of GI Registry

Rep.of Beneficiary
Societies

State GI Management
Govt. Appointed Chair
Committee

Rep. of Proprietors
Local GI Fund
Economist
Royalty
Govt. funding
Technical Experts
Beneficiary
Industry
Cooperative Societies
Vertical Clusters

Horizontal Clusters

Conclusion ensures funding to the beneficiaries irrespective of

market fluctuation and involves Public–Private Part-
India is a country rich in its culture and heritage. It is nership (PPP) for its effective functioning. It would
known for its exquisite handicraft and textile work. ensure that GI registration is not restricted in papers
Textiles and handicrafts industry has a major role in and serves to be beneficial to the grassroots level
strengthening India’s economy. Currently the number beneficiaries. The implementation of post-registration
of GIs registration is increasing but that alone is not measures on each GI is necessary for proper benefit
enough for the protection of the registered GI product. sharing among the communities involved and their
The need of the hour is to focus on implementing and socio economic development. Also its close linkage
strengthening existing framework on post GI measures with tradition suggests that it would help in conserving
in order to increase the brand value of these products and protecting the rights of the holders of indigenous
and generate greater revenue that ultimately helps in knowledge and skill in particular areas. Thus protect-
uplifting the socio economic status of the ing GI means that through the process we are
beneficiaries. preserving ‘‘traditional cultural expressions’’ of artis-
Effective implementation of the GI tools includes tic heritage transferred by generations in the region.
adherence to the quality standards by manufactures, The GI registration should generate premium brand
branding, promotion and vigilant market watch for any price and help in rural development of India. GIs can
infringements of the registered GI products.35 This be connected with tourism and add value to particular
would include the involvement of Government, NGOs regions like Darjeeling Tea, Nilgiri Hills are also
and stakeholders of the registered GI products. The famous for tea plantations. State Governments should
proposed prospective model takes into account the thus take special interest in branding regions. Local
representation from each level in the supply chain. It craftsmanship is affected by the intrusion of power
looms and competitiveness of the product in the
35 market. States should take stringent action under the
Kulkarni V, Konde V (2011) Pre- and post geographical
indications registration measures for handicrafts in India. GI act against such imitations and should recover huge
J Intellect Prop Rights 16:463–469. damages which can be used for the development of the

123
306 Decision (September 2015) 42(3):293–306

community involved in the GI protection. Brand majority in India and legal protection should be given
equity development will give a positive effect in the to such models which sustain the GIs in India for the
market and production of particular GI. The ‘‘free coming centuries.
riders’’ of the product will affect the quality and
reputation of the product. GI protection is a strong tool Acknowledgments The authors are thankful to the
Geographical Registry, Chennai for the data available in the
in the hands of the rural community and proper benefit
public domain and Mr. Prashant, Examiner for his support.
sharing mechanism should be developed in India for
the development of rural people which constitute the

123