Some Selected Case an analysis on obtained by acquiring a right over the sign

that constitutes the indication.

Indian Geographical Indication Act
Authors : Ashutosh kumar Srivastava1 , and Case Analysis
Puja Paul Srivastava2
The Scotch Whisky Association, ... vs
„A geographical indication (GI) is a sign Golden Bottling Limited 4
used on products that have a specific
It is submitted by learned Counsel for the
geographical origin and possess qualities or
Plaintiffs that under the WTO TRIPS
a reputation that are due to that origin. In
Agreement, protection is provided for
order to function as a GI, a sign must
geographical indications in terms of Article
identify a product as originating in a given
22 thereof. Article 22.1 defines geographical
place. In addition, the qualities,
indications as indications, which identify a
characteristics or reputation of the product
good as originating in the territory of a
should be essentially due to the place of
Member, or a region or locality in that
origin. Since the qualities depend on the
territory, where a given quality, reputation
geographical place of production, there is a
or other characteristic of the good is
clear link between the product and its
essentially attributable to its geographical
original place of production‟.3
origin.
A geographical indication right enables
those who have the right to use the Article 22.2 and 22.3of TRIPs read as
indication to prevent its use by a third party follows: -
whose product does not conform to the
applicable standards. For example, in the Article 22.3 Each Member shall provide the
jurisdictions in which the Darjeeling legal means for interested parties to prevent
geographical indication is protected, use of a geographical indication identifying
producers of Darjeeling tea can exclude use wines for wines not originating in the place
of the term “Darjeeling” for tea not grown in indicated by the geographical indication in
their tea gardens or not produced according question or identifying spirits for spirits not
to the standards set out in the code of originating in the place indicated by the
practice for the geographical indication. geographical indication in question, even
where the true origin of the goods is
However, a protected geographical indicated or the geographical indication is
indication does not enable the holder to used in translation or accompanied by
prevent someone from making a product expressions such as 'kind', 'type', 'style',
using the same techniques as those set out in 'imitation' or the like.
the standards for that indication. Protection
for a geographical indication is usually It is submitted by learned Counsel for the
Plaintiffs that the word 'Scot' or 'Scotch' is a
1
Assistant Professor (law) at Banasthali Vidyapith geographical indication within the meaning
,Rajasthan , India
2
Assistant Professor (law) at Banasthali Vidyapith
,Rajasthan , India
3 4
http://www.wipo.int/geo_indications/en/ on 20 April, 2006

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of Article 22.1 in as much as it identifies market. Section 2(1)(f) of the GI Act defines
whisky produced in Scotland. "goods" to mean any agricultural, natural or
manufactured goods or any goods of
handicraft or of industry including foodstuff.
The following sub-section gives an inclusive
For the purposes of this clause, any name definition of "indication" to imply any
which is not the name of country, region or name, geographical or figurative
locality of that country shall also be representation or any combination of them
considered as the geographical indication if conveying or suggesting the geographical
it relates to a specific geographical area and origin of the goods to which it applies.
is used upon or in relation to particular Section 2(1)(e) of the GI Act is of the very
goods originating from that country, region essence of this statute:
or locality, as the case may be;
(2) The exclusive right to the use of a
20. Section 20(1) of the Act prohibits any geographical indication given under section
person from instituting any proceedings to (b) of sub-section (1) shall be subject to any
prevent or to recover damages for the condition and limitation to which the
infringement of an unregistered registration is subject.
geographical indication. However, this does
not affect the rights of action against any (3) Where two or more persons are
person for passing off goods as the goods of authorised users of geographical indications,
another person or the remedies in respect which are identical with or nearly resemble
thereof [Section 20(2)]. Learned counsel for each other, the exclusive right to the use of
the Plaintiffs also drew my attention to any of those geographical indications shall
Section 67 of the Act which empowers a not (except so far as their respective rights
Court, inter alia, to grant either damages or are subject to any conditions or limitations
account of profits. entered on the register) be deemed to have
been acquired by anyone of those persons as
Tea Board vs ITC Limited 5 against any other of those persons merely by
registration of the geographical indications,
The GI Act announces in its preamble that it but each of those persons has otherwise the
provides for the registration and better same rights as against other persons as he
protection of geographical indications would have if he were the sole authorized
relating to goods. In its statement of objects user."
and reasons, the bill that preceded the Act
proclaimed that unless a geographical "22. Infringement or registered geographical
indication was protected in the country of its indications.- (1) A registered geographical
origin, there would be no obligation under indication is infringed by a person who, not
the agreement on Trade Related Aspects of being an authorized user thereof,-
Intellectual Property Rights (TRIPS) for
other countries to extend reciprocal (a) uses such geographical indication by any
protection and that would be to the means in the designations or presentation of
detriment of goods bearing Indian goods that indicates or suggests that such
geographical indications in the international goods originate in a geographical area other
than the true place of origin of such goods in
5
On 20 April, 2011

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a manner which misleads the persons as to Shamnad Basheer vs Union Of India6
the geographical origin of such goods; or
This case was related to the The
One need must address the fundamental qualification for the post of Senior Joint
point of principle raised by the defendant: Registrar of Trade Marks and Geographical
that the rights of the plaintiff in respect of its Indications is prescribed hereunder:
registered marks are only to protect goods
and cannot be extended to any form of ''(i) Degree in Law from a recognised
services. The first part of such contention is University;
that in so far as the plaintiff is the registered
proprietor of a geographical indication and (ii) Twelve years practice at a Bar or Twelve
the GI Act is confined only to goods, the years experience in a State Judicial Service
plaintiff cannot have any cause of action or in the Legal Department of a State
against any service that may use the Government or of the Central Government
identical geographical indication. The or in the processing of applications for
second part of the submission on such score registration filed under the Trade Marks Act
implies that if a certification mark is in or Geographical Indications Act or in
respect of any goods, a complaint of teaching law in a recognised University or
infringement may be brought against any Institute.
other goods or persons connected therewith;
or if a certification trade mark is in respect or Masters Degree in Law of a recognized
of any services, a complaint may be brought University with ten years' experience in
against any other service or persons teaching law or in conducting research in
connected therewith: but a complaint may law in a recognized University or Research
not be brought by the registered proprietor Institution.'' 9.12. In the present case, a
of a certification trade mark relating to technical member takes part on equal terms
goods against any service or persons along with a judicial member in the decision
connected therewith; and, the registered making process. The qualification is also
owner of a certification trade mark relating prescribed as 12 years of practice at the bar
to any service may not complain against any or 12 years experience in a State Judicial
infringing goods or persons connected Service with a Degree in Law. With the
therewith. The point raised as to the cross- above said qualification, along with other
category impermissibility of a complaint, in qualifications, there cannot be any difficulty
case of both a geographical indication and a in appointing such a person as a technical
certification trade mark, does not have to be member. However, the problem would
conclusively answered at this stage. There is possibly arise when a person sought to be
no application for rejection of the plaint on appointed as a technical member merely
the ground that it does not disclose any because he works in the Legal Department
cause of action. But since the point has been of a State Government or Central
urged, a tentative view has to be expressed Government or involved in the process of
for, if a cross-category objection cannot be applications for registration filed under the
maintained, there is no question of entering Trade Marks Act or Geographical
into the merits of the matter any further. Indications Act or in teaching law in a
recognised University or Institute. Similarly,
a Masters Degree in Law of a recognised
6
on 10 March, 2015

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University with ten years' experience in collective use by those who comply with
teaching law that may be a qualification for defined standards.
appointment of a Registrar cannot be termed
as a qualification requisite for appointment Broadly speaking geographical indications
of a technical member. The Scheme of the are protected in different countries and
Act also provides for the appointment of a regional systems through a wide variety of
technical member as a Vice Chairman and approaches and often using a combination of
then as Chairman. Therefore such persons two or more of the approaches outlined
cannot be made eligible. We are fortified in above. These approaches have been
our views by the judgment rendered in developed in accordance with different legal
R.K.Jain Vs. Union of India, ((1993) 4 SCC traditions and within a framework of
119), wherein, the Honourable Supreme individual historical and economic
Court adjudicated. conditions.

 Geographical indications are

typically used for agricultural
products, foodstuffs, wine and spirit *********
drinks, handicrafts, and industrial
products.
 These rights are so new for India so
that as per the expansion of law and
economy relating to Intellectuality of
Geographical Indication , new
conflict will arise & people will also
aware to their rights

There are three main ways to protect a

geographical indication:

 so-called sui generis systems (i.e.

special regimes of protection);
 using collective or certification
marks; and
 methods focusing on business
practices, including administrative
product approval schemes.

These approaches involve differences with

respect to important questions, such as the
conditions for protection or the scope of
protection. On the other hand, two of the
modes of protection — namely sui generis
systems and collective or certification mark
systems — share some common features,
such as the fact that they set up rights for

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