Article: Whether Private Entities Can Seek Registration of GI?

Author: Sannidhi Mahapatra

Introduction

To uniquely identify a product based on its geographical location of production, production technique, and quality, a Geographical Indication (GI) tag plays a pivotal role. One can easily identify “Darjeeling tea” and “Orissa Pattachitra” as unique products from the respective locations. Section 2(e) of the Geographical Indications of Goods (Registration and Protection) Act, 1999 (“GI Act”) defines GI as “goods … originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin…”. The importance of GI is significantly pronounced for producers of such a unique product who generally constitute a tiny minority of the population. 

Who can apply for GI?

Section 11(1) of the GI Act states “Any association of persons or producers or any organisation or authority established by or under any law …representing the interest of the producers of the concerned goods” can apply for a GI tag. For any such organization claiming to represent the producers for a GI tag, Rule 32(6)(a) of the Geographical Indication of Goods (Registration & Protection) Rules 2002 (“the GI Rules”) states that the application should also contain “an affidavit as to how the applicant claim to represent the interest of the association of persons or producers or any organization or authority…”.

The intention underlying the GI Act’s Section 11 read with Rule 32(6)(a) of the GI Rules would indicate that only a class or group of persons or producers or an association representing the interests of the producers would satisfy the qualification criteria under Section 11 of the GI Act. However, there is no clarification regarding the claim made out in the Affidavit mandated under Rule 32(6)(a). While Section 28 of the GI Act deals with amendments to the Register, there is an absence of clause dealing with changes in the Affidavit. The Act does not place any onus on the Registrant to update the Registrar with respect to any subsequent changes, like the addition or removal of members, nor does it mandate submission of a further Affidavit in light of said change.

Why should private entities not be given a GI tag?

A private entity applying for GI came to light when Reliance India Limited (RIL) applied for GI tag of “Jamnagar” for its oil and gas. [1] The tag was never approved and RIL had to rescind the application. However, this application being forwarded until the advertisement stage points at the weak nature of the checklist used to consider a GI registration. Likewise, the application for Chinnor Rice [2] by a private entity is questionable in terms of the representation of interest. 

Another highly debated case is of “Tirupati Laddu” [3] where the temple trust filed and secured the said GI tag for laddus offered to God. However, the decision of the Registrar has been criticized as granting of this GI gives the temple trust exclusive right to use the GI for the Laddus and prevent other local businesses from selling similar laddus which runs contrary to the spirit of the GI Act. 

Another way that private entities may end up benefiting is by applying for a GI tag without the knowledge of the local producers. Such is the case of Subhash Jewellery v. Payyannur Pavithra Ring Artisans [OA/2/2010/GI/CH] [4]. Section 11(2) of the GI Act states the evidence is needed to show that the producers named in the application are actually “producers” as defined by the Act. The Applicant association had seven members out of which only two were artisans.

Why should private entities be given a GI tag?

However, it can be argued that private entities should be granted a GI tag in cases where they can prove that they represent the interests of the producers. Applications where a private entity proves beyond reasonable doubt that they have the support of the producers and the benefits from the tag would be shared with the producers in concern, should be considered. This would be especially helpful in cases where the producers are reluctant or unable to deal with the paperwork required for forming the organization and applying for a GI. Although this would act as a precedent for other private entities to try and misuse the GI label for their own benefits, inclusion of special provisions in the Act by way of periodic checks can prevent this.

Conclusion

The focal point of the GI tag is to let local producers enjoy the benefits from a mark of authenticity and quality. If there are private entities that can ensure the benefits of the GI reach these producers, then considering a GI application from a private entity should not be barred. However, there needs to be far more stringent measures in place to allow GI registrations to private entities, like streamlining of the mandated Affidavit under Rule 32(6)(a) or the introduction of a system of periodic check on the entities to ensure the benefits are received by the represented producers.

Endnotes

1. Reliance withdraws GI tag applications for Jamnagar and KG Gas, available at https://economictimes.indiatimes.com/industry/energy/oil-gas/reliance-withdraws-gi-tag-applications-for-jamnagar-and-kg-gas/articleshow/4995119.cms?from=mdr  Applications can be accessed at:

http://ipindiaservices.gov.in/GIRPublic/Application/Details/38 http://ipindiaservices.gov.in/GIRPublic/Application/Details/39  http://ipindiaservices.gov.in/GIRPublic/Application/Details/42 http://ipindiaservices.gov.in/GIRPublic/Application/Details/41  http://ipindiaservices.gov.in/GIRPublic/Application/Details/40

2. Application can be accessed at:  http://ipindiaservices.gov.in/GirPublic/Application/Details/663

3. R.S. Praveen Raj v. Tirumala Tirupati Devasthanams [ Rectification application No. 2 against Geographical Indications Application No. 121 Dated: 30.07.2012], available at https://spicyip.com/docs/Order-of-GI-Registry.PDF . See also, Grant of Geographical Indication Designation to Tirupati Laddu: Commercialization of Faith? Meghna Banerjee & Susanah Nausahd, available at http://nujslawreview.org/wp-content/uploads/2016/12/meghna-banerjee-and-susanah-naushad.pdf  

4. Subhash Jewellery v. Payyannur Pavithra Ring Artisans [OA/2/2010/GI/CH], available at https://www.legitquest.com/case/subhash-jewellery-v-payyannur-pavithra-ring-artisans/1425A9

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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