RESEARCH PAPER

The management of geographical indications: postregistration 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

of Goods (Registration & Protection) Act, 1999 in

compliance with the Trade Related Aspects of Intel-

lectual Property Rights (TRIPs) Agreement under the

World Trade Organisation (WTO) Agreements which

concluded in 1995. Article 22 of the TRIPs Agreement

defines Geographical Indication as ‘‘the 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 character-

istic of the good is essentially attributable to its

geographical origin’’. Many developing countries like

India has enacted legislation for greater and stronger

protection of GI in order to uplift the economic

condition of the poor people those who contribute to

many key products of export. Since the Act has been

passed 15 years back and India registered its first GI,

Darjeeling tea in 2004, the total registrations now have

reached to 227 in number. The present paper re-

examines the challenges ahead in implementation of

the Act and to suggest further amendments to the Act

for better protection to Indian indigenous knowledge

and reputation of products originating from India. It

also tries to identify what is further required to reap the

benefits of registration and problematic areas like who

can be a right applicant of a GI application, Part-B

registration of beneficiaries, marketing of GI products,

maintaining quality of the product and counterfeiting

and enforcement mechanism. It is argued that India

requires a coordinated effort of Central and State

Governments, proprietors of GI and beneficiaries to

protect and promote Indian GIs in future.

Keywords Benefit sharing � Geographicalindication � Developing nations � India � Economic

development

Introduction

India has always been a land of international trade and

export from ancient times.1 From handicrafts to

textiles, jewelry to metallurgy, there has been a long

history of export. According to some artisans India

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

Saree & Fabrics from Odisha’’.

K. D. Raju (&)

Rajiv Gandhi School of Intellectual Property Law, IIT

Kharagpur, Kharagpur, India

e-mail: rajukd@gmail.com

S. Tiwari

MSc Plant Biotechnology, TERI University, New Delhi,

India

e-mail: shivangitiwari.1990@gmail.com

1 Padma Mohan Kumar, India - The Roaring Trade Partner of

Yore, http://www.gatewayforindia.com/articles/tradeyore.htm.

123

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

DOI 10.1007/s40622-015-0084-2

may have been the original home of textiles printing

and the export of these printed fabrics to China can be

dated back to fourth century B.C.2 Indian textile items

from Gujarat were exported to Arab countries. Carpet

weaving and export were peculiar during the Mughal

period.3 In sixteenth century Portuguese trading port

was established in Calicut and Cochin where the

export of various varieties of spices took place.4 Since

that time there has been a strong connection between a

product and a region that had a great impact in the

international trade as the product is known to the

outside world in the name of the region or a country.

There was always a demand for a product originating

from a particular place with a special reputation. This

demand was due to the superiority of the product

belonging to a specific geographical area which was

believed to be present due to the distinctness of various

factors such as geography, soil, climate, water or

specific skills and craftsmanship. For example, Scotch

whisky belongs to Scotland is famous from 1495 is

now protected under the TRIPs regime.5 With the

increasing demands and the rise in the economy, the

merchants started branding their products with a

certain mark that delegated the place of origin of the

product. The description or the branding was done by

using symbols, logo or even the pictures of local

animals, landmarks, buildings or well-known local

personalities of the particular region. Later on, these

marks were regarded as the symbol of quality,

guarantee and faith by the customers. Thereby, stating

that the marks indicating the geographical region were

the earliest type of the trademarks used by the

merchants.6 To safeguard the commercial status and

to maintain the quality of these goods, establishment

of a system of labeling of the approved local goods

made by the original producers with a mark (e.g.

hallmarks and wool marks used for goods made up of

precious metals and cloth quality respectively)

authenticating their quality, was done by the local

legislators.

These geographical marks are defined worldwide as

‘‘Indication of Sources,7’’ ‘‘Appellations of Origin,8’’

and ‘‘Geographical Indications (GI)’’. Paris Conven-

tion9 was the first multilateral agreement which

provided for protection of ‘‘indication of source’’

and ‘‘appellations of origin.’’ It however, does not

define ‘‘Indication of Source’’ or ‘‘Appellations of

Origin’’. Article 1(2) of the Convention states that

‘‘The protection of industrial property has as its object

patents, utility models, industrial designs, trademarks,

service marks, trade names, indications of source or

appellations of origin, and the repression of unfair

competition.’’

The conclusion of the Uruguay Round of nego-

tiations became the turning point in the history of the

entire intellectual property protection regime.10 For

the first time the IP protection came under the

umbrella of the WTO regime since the establishment

of the General Agreement on Tariffs and Trade

(GATT) in 1947. Before the TRIPs Agreement, GI

was protected under Article 1(2) of the Paris Conven-

tion 1883 andMadrid Agreement for the Repression of

False or Deceptive Indications of Source on Goods of

1891 and later on in the 20th century it was protected

under the Lisbon Agreement for the Protection of the

2 Stuart Robinson: A History of Printed Textiles.3 History of India: IndiaTradePromotion.com http://www.

indiatradepromotion.com/history-indian-trade.html.4 The Portuguese Empire in the East (c.1500–1600), The Flow

of History http://www.flowofhistory.com/units/west/12/FC82.5 History of Scotch Whiskey, Scotch Whiskey Association

http://www.scotch-whisky.org.uk/understanding-scotch/history-

of-scotch-whisky/.6 McCarthy C and Devitt BM (1979) Protection of geographical

denominations: domestic and international, 69 T.M.R.197.

7 Agreement for the Repression of False or Deceptive Indica-

tions of Source on Goods, 1891 (The Madrid Agreement

provides for false and deceptive Indication of Sources). See

http://www.wipo.int/export/sites/www/madrid/en/legal_texts/pdf/

madrid_agreement.pdf, last visited on 14.12.2014.8 The Lisbon Agreement for the Protection of Appellations of

Origin and there International Registration (1958) defines

Appellation of Origin in Article 2(1) to mean ‘‘the geographical

name of a country, region, or locality, which serves to designate

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

http://www.wipo.int/treaties/en/text.jsp?file_id=285838, last

visited on 14.12.2014.9 Paris Convention for the Protection of Industrial Property was

one of the first multilateral treaties protecting the intellectual

property. Article1 deals with the establishment of the union and

scope of industrial property. Full text available at http://www.

wipo.int/treaties/en/text.jsp?file_id=287556, last visited on

10.12.2014.10 Uruguay Round of trade negotiations started in 1986 and

ended in 1994 which lead to the establishment of the World

Trade Organization (WTO) Agreement.

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

123

Appellation of Origin and their International Regis-

tration of 1958.

GI protection under the TRIPs agreement

Geographical indication protection is one of the

categories of intellectual property item included under

Article 22 of the TRIPs Agreement. It defines

Geographical Indication as ‘‘the 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’’.11 Article 22(3) states that members must

‘‘refuse or invalidate the registration of a trademark

which contains or consists of a geographical indication

with respect to goods not originating in the territory

indicated if use of the GI of such a nature leads to

mislead the public with the true place of its origin’’. It

means that there must be a link between the product

and the original place of production. Not only the

agricultural products but any product that can be

attributed to human factors found in the product’s

place or origin, such as specific manufacturing skill

that can be registered as in the case of Mysore Saree.

Handicrafts are best qualified to be registered as GIs as

in India this sector is well developed and with highest

number of registrations and many more are to be

exploited. The standards of Article 22 are qualified

under Article 23 which provides for additional

protection for GI related to wines and spirits.

GI protection in India

Many developing countries like India have enacted

legislation Geographical Indications of Goods (Regis-

tration & Protection) Act, 1999 for greater and

stronger protection of GI with an objective of uplifting

the economic condition of the poor people those who

contribute in many key products of export. The prime

economic function of GI protection is to maintain the

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

objectives for getting GI protection. Where the

European Union (EU) on one hand used GI as a tool

in order to consolidate the reputation, market niche

and market exports keeping in mind both the quality

and the quantity of the agricultural products,12 coun-

tries like Costa Rica13 have built up a certain

mechanism for benefit sharing after the GI Registra-

tion. This has not only led to an increase in the income

of coffee growers but has also led to the infrastructure

development of the places which are registered.

The first GI registered from India is ‘‘Darjeeling

Tea’’ in the year 2004, which is world famous for its

aroma and known as the black tea from India. The Tea

Board of India has also applied for the registration of

the words ‘Darjeeling’ and ‘Darjeeling logo’ under the

Act. This tea is produced by approximate 80 tea

gardens in the valley of Darjeeling in the State of West

Bengal. In order to provide legal protection in India the

Tea Board of India registered the ‘Darjeeling logo’ and

also the word ‘Darjeeling’ as certification trade marks

(CTMs) under the (Indian) Trade and Merchandise

Marks Act, 1958 (now the Trade Marks Act, 1999).14

GIs and trademark are distinct signs to identify a

particular product. But considering their objective they

are different in protection of a product. Trademark

informs a consumer about its source of goods or

services and from which company it specifically

originates. GI specifically indicates and identify a

good originating from a particular place. Trademark

can be licensed but GI cannot be licensed to anybody.

Appellation Origins (AO) are also special GIs protect-

ed under the Lisbon Agreement. A name of the product

connected with a place in AO. In both AO and GI there

should be a qualitative link between the product and

place of origin. Sometimes CertificationMark can also

become GIs like in the case of Colombian Coffee. The

11 Agreement on Trade-Related Aspects of Intellectual Prop-

erty Rights, April 15, 1994. Marrakesh Agreement Establishing

the World Trade Organization, Annex 1C, art. 22–23, Legal

instruments—results of the Uruguay Round, 33 I.L.M. 1197

(1994) [hereinafter TRIPS Agreement], available at http://www.

wto.org/english/docs_e/legal_e/27-trips.pdf, last visited on

10.03.2014.

12 Information obtained from United Nations Economic and

Social Commission from Asia and the Pacific (UN ESCAP). See

http://www.unescap.org/pdd/publications/apdj_16_2/4_jain.pdf,

visited on 10.03.2014.13 Cafe de Costa Rica http://www.cafedecostarica.com/home.

html.14 S.C. Srivastava Protecting the Geographical Indication for

Darjeeling Tea https://www.wto.org/english/res_e/booksp_e/

casestudies_e/case16_e.htm.

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

123

Indian registration and trend is to be discussed in order

to understand the participation of different states and

its approaches in protecting its indications.

GI registrations in India

With the emergence of the Geographical Indication of

Goods (Registration and Protection) Act, 1999, India

propelled forward to safeguard the commercial status and

to maintain the quality of these goods, by establishing a

system of labeling the approved local goods made by the

original producers. State governments are taking initia-

tives to safeguard the interest of its people by getting their

GI registered, be it for the exquisite work done by the

people, a traditional practice over the generation or any

form of a traditional knowledge also. A total of 227 GIs

have been registered so far in India since 2004 and around

139 Indian applications and 126 foreign applications are

filed with the GI Registry in Chennai. The following

table15 provides for the initiatives taken by the respective

state governments in India (Table 1).

It can be clearly seen that the states from the

southern part of the country are more active with

regard to the registration of their GIs. Where Kar-

nataka has the maximum GI registered of number 41

followed by Andhra with 26, Tamilnadu with 24 and

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

and Uttar Pradesh (15) are also taking more initiatives

about their GI registration. States are taking efforts to

create more awareness among the people on the

benefits of GI protection. Unfortunately, states in the

Northern part of the country are less active about GI

registration, there are hardly any GI registrations from

the North Eastern States and hence, are lacking

adequate protection to traditional goods and products

originating from these parts of the country.

The lack of awareness amongst the people and

initiatives from the state govt. is jeopardizing some of

the traditional and highly economical products, For

e.g. ‘‘Chilika Curd’’ is one such dairy product prepared

with a traditional technique in cup shaped bamboo

basket using milk of Chilika buffalo by the ethnic

community of Chilika, Odisha.16 It is known and

Table 1 State-wise distribution of GI registration in India

S. no. Names of the states No. of GI registrations

1 Andhra1Telangana 23

2 Assam 03

3 Bihar 05

4 Chhattisgarh 03

5 Goa 01

6 Gujarat 09

7 Haryana 01

8 Himachal Pradesh 06

9 Jammu and Kashmir 03

10 Karnataka 41

11 Kerala 21

12 Madhya Pradesh 06

13 Maharashtra 10

14 Nagaland 01

15 Odisha 16

16 Punjab 01

17 Rajasthan 10

18 Tamil Nadu 24

19 Uttar Pradesh 15

20 West Bengal 09

Data Source GI Registry as of 1st January 2015

Bold indicates the top 5 states with highest GI registrations in

India

Karnataka 20%

AP 12%

Assam 1%

Bihar 2%

Chha�sgarh 1%

Goa 0%

Gujarat 4%

Haryana 0%

HP 3% J&K

1%

Kerala 10%

MP 3%

Maharashtra 5%

Nagaland 0%

Odisha 7%

Punjab 0%

Rahasthan 5%

Tamilnadu 11%

UP 7%

WB 4%

Fig. 1 Statewise contribution of granted GIs. Source GI

registry data up to 1st January 2015

15 Data obtained from Geographical Indications Registry,

Intellectual Property India Website. See http://ipindia.nic.in/

girindia/, visited on 14.03.2014.

16 Nanda DK, Singh R (2013) Chikila curd—a potential dairy

product for geographical indication registration. Indian JTradit

Knowl 12(4):707–713.

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

123

tested to have an exceptionally extended shelf life as

compared to the other curds. Experiments have shown

the presence of a diverse range of microbes which

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

make a potential GI. Many such products in various

parts of the country are hidden and not explored well.

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

and textiles industry, it is important for the govern-

ment to preserve the skills, the exquisite work and the

revenue earning capacities of these artisans and skilled

people pertaining to a particular geographical area and

conferring to them a monopoly to manufacture the

same. India has its products registered in 5 categories

namely Agricultural, Handicraft, Manufactured, Food

stuff and Textiles. Following chart18 provides for the

percentage division of each category for the GIs that

have been registered (Fig. 2).

Despite India being an agrarian country, handicrafts

lead when it comes to GI registration with a maximum

of 66 % followed by agricultural GIs of 22 %. The

registration makes handicrafts and textiles industries

as one of the promising revenue generating industries

in the coming future after agriculture but when it

comes to extracting the economic benefits out of GI,

one need to acknowledge the fact that GI registration

or protection for that matter doesn’t sell itself. For a

product to sell and achieve a certain status in the

market proper branding and quality assessment has to

be done so that the consumer is able to find a product-

place link.19

Part-A registration procedure

An association of persons or producers as a group or

any authority should represent the interest of the

producers as a whole to file the GI application and they

must file an affidavit as to how they claim to be

represent the interest.20 The application must mention

the special characteristics of the product and its

production procedures or cultivation methods. A

statement of case is to be prepared and filed with the

application. The region map to be certified by the

authorities. The uniqueness of the product will decide

the qualification of registration. The application will

be examined by the GI Registry in Chennai andmay be

asked for more clarification and details and fulfil the

deficiencies. The consultative group with experts will

consider the statement of case and a proper represen-

tation from the applicant. The decision will be

communicated to the applicant and further appeal

can be filed to the IPAB by the applicant. The

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

Registrar, registration will be done and the certificates

will be issued.

Handicra� 66%

Agricultural 22%

Manufactured 8%

Food stuff 1%

Tex�le 3%

Fig. 2 Sector-wise distribution of GI registration in India. Data

Source GI registry as of 1st January 2015

17 Sarkar S (2008) Innovations in Indian fermented milk

products—a review. Food Biotechnol 22(1):78–97.18 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/

Papers/GI_Paper_CWS_August%2009_Revised.pdf, visited on

14.03.2014.

20 http://ipindia.nic.in/girindia/RegistrationProcess.htm, visit-

ed on 14.04.2015.

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

123

Who can be an applicant in Part-A and Part-B

registration

Section 11 of the GI Act provides that ‘‘any asso-

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

forming an association. The association can be in the

form of co-operative societies, societies registered

under Societies Registration Act of 1860 or asso-

ciation formed under any other lawful authority. But in

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

by Central Government agencies further constitute a

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

Kerala Agricultural University filed an application for

‘‘Central Travancore Jaggery’’ and Anand Agricultur-

al University, Gujrat, filed for ‘‘Bhalia Wheat’’ from

Gujarat. These Universities and State agencies are

neither the producers nor association of producers.

The increasing number of such applications undermi-

nes the very spirit of the GI Act. In such cases the

original producers are going to be registered in the

Part-B and they can only become beneficiaries and

cannot own their own indication (Fig. 3).

Whereas, the main objective of this registration

should be to provide ownership to those who are the

prime producer of the product. Therefore, in every

application, the governmental agencies should play a

role of a mediator and facilitator in filing the

applications rather becoming the proprietors of GIs

themselves which doesn’t help benefit the real

producers. Moreover, in some cases, the GI propri-

etors have nothing to do with the geographical area

and the producers. For example the Leather Research

Institute in Chennai filed application for the famous GI

‘‘Kolhapuri Chappals’’ from Maharashtra, thousands

of kilometers away from the actual producers. Another

application for ‘‘Leather Toys of Indore’’ was filed by

the Development Commissioner (Ministry of Handi-

crafts), New Delhi. If the GI Registry promotes this

kind of application, finally, there won’t be any

connection between the Proprietor under Part-A

registration and beneficiaries under Part-B

registrations giving proprietor an edge over the

beneficiaries in terms of any monetary benefit arising

out of the product.

Part-B registration is provided in Section 7(3) of the

Act. It is noticed that in few GIs very less number of

beneficiaries are registered under Part-B. As per

information from the GI office a total number of

2073 Part-B applications have been filed so far against

few GIs registered. This number is a fractional one on

the background of lakhs of beneficiaries are available

on the product. If we consider a single item,

Sambalpur bandha saree and fabrics, there are more

than one lakh weavers are spread on the four districts

of Odisha. But recently the Odisha Government has

taken an initiation to register only 30 beneficiaries

under Part-B registration of this item. It is interesting

to note that not even a single Part-B application has

been filed against Darjeeling tea even though the

proprietor, the Tea Board has included 80 plantations

from the area for the authorized production of the

famous Darjeeling tea. Generally people are not

interested in registering themselves as beneficiaries

because no actual benefit is going to the weaver or

producer of these goods. Neither in the Act nor in any

policy for benefit sharing mechanism for the better-

ment of the producer community. Without actual

monetary or non-monetary benefits, people may not be

interested to register themselves as beneficiaries under

Part-B registration. The possible other reasons may be

summarized as follows:

C.Gov.Agencies 15%

State-Agencies

41%

Co-Op.&Socie�es

39%

Universi�es 2% Foreign

3%

Applicants-Registered GIs

Fig. 3 Category of applicants. Data Source GI registry as of 1st

January 2015

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

123

• There is no incentive for the beneficiaries to

register under Part-B.

• The procedures for registration are unknown to

beneficiaries.

• The proprietors have less interest in including

more and more on its fold.

• Lack of awareness is a common reason.

• Financial constraints for completing the procedure

is also an impediment.

• Lack of expertise in most of the States in India is

another barrier.

Possibly State Governments can take up the initial lead

in Part-B registrations with proper awareness pro-

grammes and administrative set up for benefit sharing

which may attract the beneficiaries.

Branding and marketing of GI products

GI products are facing origin linked quality issues as

their counterfeits are competing in the market reduc-

ing the reach of the original product to the public. Each

and every GI product have a specific market and if this

geographical-origin linked quality product can be

translated into market potential and sales, this will

immensely benefit the producers. Proper marketing

can reduce product failures and reduce the risk of

business and can generate sufficient income for each

group in the marketing ladder. Many of the products

have logo as well included in the applications

including the first GI registered in India, i.e. Darjeel-

ing tea. But in most of the GI products there is less

emphasis on branding and marketing of products

Other countries are actively promoting their prod-

ucts in the international market. But India has taken

little effort to market its famous products like

Darjeeling tea or Mysore silk within or outside the

country. Around 80 tea gardens have been recognized

by the Tea Board of India within the territory of

Darjeeling Tea. But none of the tea gardens are

registered under Part-B. Most importantly, Tea Board,

the proprietor of the GI has not taken any measures to

use its logo registered. In a preliminary market survey

revealed that many brands of Darjeeling tea is

available in the market, but none of them are using

the registered logo and there is no mechanism to check

whether all these brands are selling tea originating

from the geographical area thus fooling the public of

the product. Marketing a GI product requires more

efforts and it should contain the economic, social and

tourism aspects. Considering the cultural importance

associated with the products. Following steps can be

taken to improve the market strategy:

1. Create an organization at every State level to

manage GI system. Governance of the organiza-

tion should include all stakeholders including

governmental agencies that can help the producers

in advising in documentation, Part-A registration,

Part-B registration, marketing and benefit sharing

as a single agency of all GI products.

2. The Organization must have a single point of

collective consultation on rule making, process-

ing, decision making, product commercialization,

marketing and dispute resolution.

3. The core of all GI systems is its reputation. Hence,

the representatives of all members of the value

chain should be part of the organization. Collec-

tive initiatives can increase the benefits and

decrease the cost in marketing GI products.

4. The organization can formulate strategies for

production systems and marketing strategies after

consultations. Thus the organization can manage

and control production systems and quality control

on the product by technical assistance and inno-

vation in the processing and quality of the product.

5. Reduce the cost of individual producers like small

scale industries. This can be done by the District

Industrial Centers by initiating the marketing

strategies.

6. On the marketing side, increase the bargaining

power of local producers in the supply chain and

the value chain should be expanded with col-

laboration of Universities, marketing agencies

and exporters.

7. Formation of a consortium of all state level

organizations and GI proprietors at the federal

level will protect all GIs in India and abroad.

India has to come up with policy guidelines for the

proper implementation of the Act, failing which, India

may lose an opportunity in the world market to

showcase the Indian GIs. It is need of the hour to

propose rules and policies for orienting the GI system

towards economic, social and sustainability of eachGI.

The Indian products which are economically

important are many but some of them are mentioned

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

123

here. Darjeeling Tea is the first GI registered in India

with a huge potential at international market and the

Tea Board of India, who is the proprietor of the GI

filed many cases against countries like Japan for

registration of the Darjeeling logo mark, namely,

Darjeeling women ‘serving tea/coffee/coca/soft

drinks/fruit juice’ in the Japanese Patent Office

(JPO) on 29 November 1996.21 Similar cases were

filed against France, Russia and US. India also

opposed the registration of Darjeeling in other coun-

tries like Germany, Israel, Norway and Sri Lanka as

well. Other category of product include textiles &

handicrafts as a single item like:

Pochampally Ikat (Andhra Pradesh)(GI Regn No. 4)

Gadwal Sarees (Andhra Pradesh) (GI Regn No.

137)

Uppada Jamdhani Sarees (Andhra Pradesh) (GI

Regn No.122)

Banaras Brocades & Sarees (UP)(GI Regn No. 99)

Lucknow Chikan Craft (UP)(GI Regn No. 119)

Paithani Saree & Fabrics (Maharashtra)(GI Regn

No. 150 &153)

Khandua Sarees & Fabrics (Odisha)(GI Regn No.

136)

Pipli Applique Work (Odisha)(GI Regn No.

86&108)

Balaramapuram Sarees & Fine Cotton Fabrics

(Kerala)(GI Regn No. 152)

Kasaragod Sarees (Kerala)(GI Regn No. 170)

Kuthampully Sarees (Kerala)(GI Regn No. 179)

Chendamangalam Dhoties & Set Mundu (Ker-

ala)(GI Regn No. 225)

Sambalpuri Bandha Saree & Fabrics (Odisha) (GI

Regn No.208)

There are hundreds of other GI products having a

market potential and the above named ones are only

some of them.

Quality issues

Quality and uniqueness of the GI products makes them

unique and the reputation is mainly depend upon the

quality of the product. It is easy to market a quality

product according to the requirement of the con-

sumers. Output of the quality product depends on the

practices of manufacturing among all providers. A

common quality policy will help the farmers and other

producers to maintain a quality product from the same

region. The quality policy should link the product and

geographical origin, production and process methods.

The distinction between two products from the same

category also depends upon the specific quality linked

to a particular geographical region. The quality or

uniqueness of the product must be essentially or

exclusively originating from a particular geographical

area which includes natural and human factors such as

climate, craftsmanship of the producer, soil quality or

local skill of the people. The production and process

should take place within the demarcated area of the

region. For e.g., The Darjeeling tea must be produced

and processed in the demarcated area of map and the

same variety of tea produced in other part of the world

cannot be named after the registered name. It means

that the reputation of the product must depend upon

the geographical origin as these geographical condi-

tions cannot be replicated under any circumstances

and in any lab. The geographical conditions of a

particular place marks as a authentication for the

quality of the product as there is no counterfeit to these

conditions

Section 11(2)(a) of the Act provides that a state-

ment to the effect of quality of the product to be stated

in the application. Rule 32(1)(6) provides that the

manufacture of the goods must have specific quality

and reputation. Rule 32(1)(6) (c) stipulates that a

mechanism to be made to ensure standards, quality,

integrity and consistency or other characteristics

should be maintained by the producers. Usually an

inspection mechanism of all stakeholders is made in

each application. But how they are going to ensure the

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

task. The traditional element is an additional character

for the purpose of GI registration. If the name does not

refer to the geographical area and unique character, it

cannot be registered as a GI. It means that quality of

the product have a serious bearing on the geographical

name and the product to be registered. The following

measures can be taken by different governments for

maintaining the quality and reputation of GI products:

21 S.C. Srivastava Protecting the Geographical Indication for

Darjeeling Tea https://www.wto.org/english/res_e/booksp_e/

casestudies_e/case16_e.htm.

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

123

1. A code of practice should be developed for each

GI product and an independent quality monitoring

body to be formed by the Central Government.

2. This independent agency will be responsible for

auditing and adherence to code of practice appli-

cable to each GI item.

3. To take action to improve the performance and

value of the products.

4. No product should be exported without quality

checking and certification according to the GI

application process.

Enforcement mechanism

The demand for quality products always benefits the

consumers all over the world.22 The GI protection

encourages fair competition between the producers

and help consumers, giving them information on the

specific characteristics of the products. Imitation and

duplication are serious problems to the original GIs in

the market. Section 39 and 40 of the GI Act provides

that in the case of infringement/false indication of a

GI, involving punishment of imprisonment for a term

which shall not be less than 6 months and may extend

to 3 years and with fine which shall not be less than 50

thousand which may extend up to 2 lakh rupees.

Unfortunately, apart from few cases like Pocham-

palli Ikat and Darjeeling tea, no other case has been

filed by Indian GI proprietors in the domestic market

so far. Pochampally Ikat is a registered GI in India by

‘‘Pochampally Handloom Weavers’ Coop. Society

Ltd’’, an autonomous society registered under the

Societies Registration 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 Pochampally Ikat. In this

case the respondent produced and marketed a product

in the name of ‘‘GI HYCO POCHAMPALLI’’ to

derive mala-fide benefit accruing from the GI Pocham-

pally Ikat. The suit was settled outside the court and

withdrawn the name from the market.23

The Tea Board of India filed a case against ITC

Ltd., a hotel chain in India against using the name

‘‘Darjeeling’’ to a lounge in a Hotel, Sonar in

Kolkata.24 Tea Board filed the case under the Trade

Mark Act and GI Act. Tea Board is the registered

proprietor of the GI ‘‘Darjeeling Tea’’ and ‘‘Darjeeling

logo.’’ ITC argued that Darjeeling is protected under

the GI Act only to goods and not applicable to

services. The Calcutta High Court held that the name

‘‘Darjeeling’’ is not the exclusive right of the Tea

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

Lakh kg authentic Darjeeling tea per annum.25 It is

also an open truth that lot of Chinese ‘‘Banarasi Saree’’

is flooding in the market which undermines the famous

Indian Saree in the market for one-tenth of original

Indian price.26 Lack of coordinated effort to find out

the source of these counterfeited products and lack of a

GI enforcement mechanism enables the counterfeiters

to exploit the market.

Section 67 of the Act provides for civil remedies

include injunction as well as damages. The court can

also order for destruction of such infringing labels and

erasure. In the case of Scotch Whisky Association v.

Golden Bottling Limited,27 Delhi High Court granted a

permanent injunction in favor of the petitioner and

awarded damages of Rs. 500,000/- under Sec. 67 of the

GI Act and to pay a litigation cost of Rs. 310,000/-

.against the Indian infringer of a GI. In this case the

Indian company was selling its whisky in the name of

‘‘Red Scot’’. The court recognized that violation of

intellectual property rights are not in accordance with

the TRIPs agreement and domestic laws.

22 Protection of Geographical Indication, Designation of Origin

and Certificates of Specail Character for Agricultural and

Foodstuffs. http://ec.europa.eu/agriculture/publi/gi/broch_en.

pdf, visited on 18.01.2015.

23 Kumar Gautam & Nupur Bahl, Geographical Indication

Pochampally Ikat http://www.aiacaonline.org/pdf/policy-

briefs-geographical-indication-pochampally-ikat.pdf.24 Sumathi Chandrasekharan, Darjeeling Tea still Lounges in

Kolkata, says HC http://spicyip.com/2011/04/breaking-news-

darjeeling-still-lounges.html.25 Dr. P. Sree Sudha, Protection of Geographical Indications

(GIs) from Indian Perspective http://lawmantra.co.in/

protection-of-geographical-indications-gis-from-infringments-

an-indian-perspective/#_ftnref25.26 Indrajit Hazra, Is you Saree a Chinese Banaresi, Hindustan

Times http://www.hindustantimes.com/business-news/is-your-

saree-a-chinese-benarasi/article1-215657.aspx.27 129 (2006) DLT 423, 2006 (32) PTC 656 Del.

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

123

With the government support producers can en-

force, promote or defend28 their GI product in the

following manner:

• Financial support from the NGOs/state govern-

ment for the post registration branding of the GI

products of a particular area.

• Vigilant market inspections in order to keep a track

of any sort of infringement occurring.

• Usage of advance technology like Radio Frequen-

cy Identification to track down the product through

the supply chain of the product globally.

• Constant communication between the representa-

tives of the supply chain from each level in order to

bring about any improvement in order to uplift the

sale of the GI product.

• Regular quality assessment to ensure the tradition-

al aspects of manufacturing.

• Involvement of media, newspapers and internet for

the publicity of the GI product for better branding

of the product.

• Producer level mechanism for identification of

counterfeited products will help the enforcement

agencies to take action against violators.

• The GI Rules 2002 to be amended to include more

executive action against infringers with penal

provisions.

Benefit sharing

Benefit sharing refers to sharing of benefits or

revenues arising out of the promotion and develop-

ment out of an indigenous product arising from

textiles, handicraft, manufacturing, agriculture or

any other industry.

The Geographical Indications of Goods (Registra-

tion & Protection) Act, 1999 aims at providing the

registration and protection of geographical indications

related to goods in India. Section 2(e) of the act

defines ‘‘geographical indication,’’ in relation to

goods, as an ‘‘indication which identifies such goods

as agricultural goods, natural goods or manufactured

goods as originating, or manufactured in the territory

of a country, or a region or locality in that territory,

where a given quality, reputation or other character-

istic of such goods is essentially attributable to its

geographical origin, and in case of manufactured

goods where one of the activities of either the

production or of processing or preparation of the

goods concerned takes place in such territory, region

or locality, as the case may be.’’

At present there is no Benefit Sharing mechanism in

the GI Act due to which the beneficiaries are deprived

of the benefit arising post registration as it doesn’t

reach the grass root level. The need of the hour is an

emphasis on building up a strong benefit sharing

model so that the benefit reaches the producers or

beneficiaries. GI will serve as a tool for the social and

economic development only when there is an overall

improvement in the living structure of these producers

be it there life style, quality education or a better

infrastructure for work. Availability of the counterfeits

for most of the products due to an advance in the

technology becomes a problem for the producers,

since most of the people pursuing the profession over

generations are not educated enough due to their

involvement in the profession at a young age in order

to support their families.29

Jeevani: a model for benefit sharing

The benefit sharing mechanism followed in the

famous case of the drug ‘‘Jeevani’’ for has proved to

be one of the highly promising benefit sharing models

for a developing country like India. Jeevani is a drug

that is made out of a plant now known as Arogyap-

pacha. This plant and its fruit have been used as an

immunity booster by a tribe in Kerala known as Kani

tribe. Over several years it has been used as a means of

their traditional knowledge.

The entire story of Kani access and benefit sharing

model initiated in the year, 1987 where a team from

All India Coordinated Research Project on Ethan

biology reached there and observed this extra ordinary

property of this plant, fruit of which was consumed by

the Kanis who accompanied as guides while they were

on a tour to the forest. On investigating and with the

help of the tribal people they were able to extract and28 Kumar Gautam & Nupur Bahl, Geographical Indications of

India, Socio-Economic and Development Issues http://www.

aiacaonline.org/pdf/policy-briefs-geographical-indications-india-

socio-economic-development-issues.pdf, visited on 14.03.2014.

29 Mashelkar RA (2001) Intellectual property rights and the

Third World. Curr Sci 81(8):955.

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

123

prepare a drug which they named Jeevani. Later Arya

Vaidya Pharmacy Coimbatore (AVP) which is the

largest Ayurveda manufacturing company was given

the license to market and sell this drug. This drug went

on to be classified under health promoting group of

drugs.

Kani tribe being the prime beneficiaries availed the

benefit by commercialization of this drug. The first

agreement was signed between the Tropical Botanic

Garden and Research Institute (TBGRI) and AVP in

1996 which was valid for a period of 7 years with a

license fee of Rs. 1,000,000 and a royalty which was to

be paid at a rate of 2 % for 10 years. This agreement

was later improvised focusing on increment in the

benefit for the tribe. The new agreement was signed

between Kani, TBGRI and AVP in the year 2006

which is yet to be implemented. It accompanied a

license fee of Rs. 2,000,000 with a royalty of 4 % to be

paid for 10 years.30

The Kani tribe till date is being benefitted by this

whole mechanism of benefit sharing as the money of

royalty goes to a trust named as The Kerala Kani

Community (Samudaya) Welfare (Kshema) Trust

which was registered on 12 November 1997. This

way their traditional knowledge has helped them built

up a better standard of living and better quality life.

Prospective model for benefit sharing of GIs

The study suggests certain prospective measures that

can be taken in order to make sure the benefit reaches

to the grassroots level. These measures can be taken

for a developing nation like India to ensure that the

reputation and the quality of the GI registered product

remains intact and the benefit reaches to the benefi-

ciaries further uplifting their socio-economic status.

Followingmeasures can be taken into consideration

for implementing a strong benefit sharing model in

India.

1. Constitution of GI Management Committee:

• A Central GI Management Committee should

be constituted by the Central Government to

co-ordinate with State Management Commit-

tees and to constitute an expert technical

committee.

• The central GI Management Committee

should consist of heads of the State Commit-

tees, representatives DIPP, representatives of

GI Registry and representatives of beneficiary

Societies.

• Every state must have a GI Management

Committee to keep a track of the all the GIs

from that particular state

• Members of the state GI Management Com-

mittee may include representatives of the

cooperative societies or the associations work-

ing on various GIs of that region, representa-

tives from state government, and economic

experts.

• Technical experts should be included in the

Management Committee in order to conduct

an inspection of various corporations in an

orderly manner so as to insure the quality of

the products is not compromised.

• Cooperative societies should work at a block

or district level to manage the small and

medium clusters of the growers or the

weavers.

• The committee should be actively involved in

spreading the awareness regarding the emerg-

ing technologies related to the particular GI

amongst the common people so that they can

be equipped with the latest technologies.

• The committee should understand the demand

of the market and should be able to come up

with innovative marketing strategies (for E.g.

use of certified marks with indication of origin

in the case of Darjeeling tea) in order to

expand the access to the market, so that better

revenues can be obtained.

• This way the State Management Committee

can not only keep a check over the quality of

the products but also increase the market reach

of these products ultimately leading to the

increased profits.

2. Local Geographical Indication Fund

• Every GIManagement committee should have

a local GI fund.

• These local funds can be supported by private

organization by contribution.

30 See at http://piipa.org/files/PIIPA_World%20Bank%20Semi

nar%20Proceedings%20on%20The%20Role%20of%20IP%

20in%20Poverty%20Alleviation-Reduction.pdf, visited on

10.03.2014.

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

123

• These funds can be used to secure the income

of the workers (i.e. growers, producers, market

representatives etc.) irrespective of the market

fluctuations. This can be done by pre and post

funding the entire process of goods

production.

• These funds can be used in order to incorpo-

rate the upcoming technologies in the produc-

tion of the goods for an improved qualitative

and quantitative production.

3. Formation of Societies

• Societies should be registered under the Soci-

eties Registration Act,31 1860 in order to

manage horizontal clusters of GIs.

• Members of the societies should include

representatives from the horizontal and verti-

cal clusters and marketing expert who has the

required knowledge of the market and help

obtain and increase the target market.

• This would help in the efficient and smooth

functioning of the clusters as there would be

constant improvement in the production

methods.

• There should be a proper supply chain32 for

every product that arises out of a particular

Geographical area, with representatives at

each level of the vertical clusters i.e. from

growers/producers to the industrial

representatives.

• Weavers or producers should send their prod-

ucts to these societies and in return these

societies should provide them with the raw

material at lower prices.

• Further these societies should assess the

demands of the market and supply the prod-

ucts accordingly.

• The beneficiaries registered under the Part-B

registration under the GI Act to be included as

the workers of this society.

• All the products to be routed through the

society so that the quality, quantity authenti-

cation of the product can be made.

• Royalties collected can be used for the welfare

of the members.

• These societies must adapt to the infrastruc-

ture compatible with the environment for

sustainable development of the GI in future

(Fig. 4).

4. Monitory and Non-monitory Benefits to the

beneficiaries:

• Since a tribal community or any local com-

munities’ economy is dependent on their

traditional and indigenous knowledge, ex-

ploitation of it should be well paid off. For

this, a fair amount of license fee should be

charged depending on the economic potential

of the product obtained from the indigenous

communities.33

• Along, with the license fee, a fixed royalty

should be paid to the holders of of the

registered GIs; this royalty should not be

reduced even if the market doesn’t perform

well.

• A certain share should be paid to the benefi-

ciaries that arise out of the commercial sale of

the product.

• Every community holding or is involved in

any traditional practice (like weaving of

Sambalpuri saree) or is involved with the

production of an area specific product should

have a society or trust, through which proper

channelization of the monitory benefits can

take place.

• Non- monitory benefits34 should be given

which may include development in the infras-

tructure or social development in terms of

providing for better education and job oppor-

tunities to the local community.

• State likelihood programs should be built

which link the societies/communities with

various health and medical facilities.

• Food and livelihood security benefit securing

the basic living standards of the communities

should be provided.

31 Societies registration Act, 1860 http://www.mca.gov.in/

Ministry/actsbills/pdf/Societies_Registration_Act_1860.pdf.32 Cafe de Costa Rica http://www.cafedecostarica.com/home.

html.

33 As seen in the case of Kani Tribe, See http://www.cbd.int/

financial/bensharing/india-kanis.pdf, visited on 10.03.2014.34 Case Study Mali, The Contribution of Religious Entities to

Health in Sub Saharan Africa http://www.arhap.uct.ac.za/

downloads/ARHAPGates_ch7.pdf.

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

123

Conclusion

India is a country rich in its culture and heritage. It is

known for its exquisite handicraft and textile work.

Textiles and handicrafts industry has a major role in

strengthening India’s economy. Currently the number

of GIs registration is increasing but that alone is not

enough for the protection of the registered GI product.

The need of the hour is to focus on implementing and

strengthening existing framework on post GI measures

in order to increase the brand value of these products

and generate greater revenue that ultimately helps in

uplifting the socio economic status of the

beneficiaries.

Effective implementation of the GI tools includes

adherence to the quality standards by manufactures,

branding, promotion and vigilant market watch for any

infringements of the registered GI products.35 This

would include the involvement of Government, NGOs

and stakeholders of the registered GI products. The

proposed prospective model takes into account the

representation from each level in the supply chain. It

ensures funding to the beneficiaries irrespective of

market fluctuation and involves Public–Private Part-

nership (PPP) for its effective functioning. It would

ensure that GI registration is not restricted in papers

and serves to be beneficial to the grassroots level

beneficiaries. The implementation of post-registration

measures on each GI is necessary for proper benefit

sharing among the communities involved and their

socio economic development. Also its close linkage

with tradition suggests that it would help in conserving

and protecting the rights of the holders of indigenous

knowledge and skill in particular areas. Thus protect-

ing GI means that through the process we are

preserving ‘‘traditional cultural expressions’’ of artis-

tic heritage transferred by generations in the region.

The GI registration should generate premium brand

price and help in rural development of India. GIs can

be connected with tourism and add value to particular

regions like Darjeeling Tea, Nilgiri Hills are also

famous for tea plantations. State Governments should

thus take special interest in branding regions. Local

craftsmanship is affected by the intrusion of power

looms and competitiveness of the product in the

market. States should take stringent action under the

GI act against such imitations and should recover huge

damages which can be used for the development of the

Rep. of DIPP

Rep. of GI Registry

Rep.of Beneficiary

Societies

Heads of State Management Committees

Technical Experts

Central GI Management Committee

State GI Management Committee

Economist

Cooperative Societies

Rep. of Proprietors

Govt. Appointed Chair

Vertical Clusters

Horizontal Clusters

Local GI Fund

Royalty Govt. funding Beneficiary Industry

Fig. 4 The management

model

35 Kulkarni V, Konde V (2011) Pre- and post geographical

indications registration measures for handicrafts in India.

J Intellect Prop Rights 16:463–469.

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

123

community involved in the GI protection. Brand

equity development will give a positive effect in the

market and production of particular GI. The ‘‘free

riders’’ of the product will affect the quality and

reputation of the product. GI protection is a strong tool

in the hands of the rural community and proper benefit

sharing mechanism should be developed in India for

the development of rural people which constitute the

majority in India and legal protection should be given

to such models which sustain the GIs in India for the

coming centuries.

Acknowledgments The authors are thankful to the

Geographical Registry, Chennai for the data available in the

public domain and Mr. Prashant, Examiner for his support.

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

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