Review: ‘Comments On The Draft Geographical Indications Guidelines: Implications And Discrepancies’ By Sulok S.K.

Author: Former Intern - Yash Raj

Citation: Sulok S.K., “Comments on the Draft Geographical Indications Guidelines: Implications and Discrepancies”, The NUALS Intellectual Property Law Review, Volume II (2020), pp. 130-145, <http://lawreview.ciprnuals.in/2020/05/04/comments-on-the-draft-geographical-indications-guidelines/>

Introduction

The aforesaid article provides a detailed analysis of the Draft Guidelines for Usage of GI Logo and Tagline notified by the Department for Promotion of Industry and Internal Trade (“DPIIT”) on June 24, 2019.

The article details the objective behind the guidelines regarding promotion of Indian Geographical Indications (“GI”) with the use of GI logo and tagline, and delves into the effectiveness of the proposed mechanism. It raises certain pertinent question regarding the implementation of the guidelines and lists a number of possible challenges it might face after it is enforced. Based on the various arguments put forth in the article, it concludes that in the present form the guidelines will not be able to have any significant impact in achieving its objective.

Permitted Usage

The article discusses the inconsistency of the guideline with the provisions of Geographical Indications of Goods (Registration and Protection) Act, 1999 (“GI Act”) in allowing the registered proprietor of a GI along with the Authorized User(s) to use the GI logo and tagline without any prior permission from DPIIT. The article does not take note of the fact that these guidelines do not have a force of law and are limited in scope. The guidelines are just complimentary to the provisions of the GI Act and not in derogation thereof.

The article elucidates on the silence of the guidelines regarding permission requirement for the use of GI logo and tagline for sale of genuine GI products by third parties such as retail and wholesale outlets. The article asserts that DPIIT would be flooded with applications from these retail and wholesale outlets for use of GI logo and tagline which in the absence of any surveillance and monitoring mechanism would lead to dilution of the logo. The article however fails to provide any coherent evidence supporting such assertions and takes a rather pessimistic view of the future possibilities. It also does not consider the lack of awareness in Indian consumers regarding GIs which would not have any major impact on the sale of GI products with or without the logo and tagline.

National GI Preference

The article highlights the discrimination between Indian GI products and foreign GI products with the guidelines limiting the use of GI logo and tagline for the former. It states that guidelines are in conflict with India’s obligation under the TRIPS Agreement for national treatment which has also been envisaged under the GI Act. The article makes a reference to two WTO Panel Reports where complaints were filed by United States [1] and Australia [2] against a labelling regulation in EU [3]. Based on the interpretation in the aforesaid panel reports, the article provides that the guidelines are in violation of India’s international commitments under TRIPS, GATT and TBT Agreements. Although the article rightly points out the apparent discrimination in the guidelines but it fails to take into consideration the non-mandatory nature of the guidelines which makes the use of the GI logo optional. Hence, the guidelines differ in scope from the mandatory EU regulations discussed in the panel reports.

Problematic Conditions

The article discusses certain problematic terms and conditions of the guidelines. It points out the inherent lack of framework for accountability for ensuring the quality or authenticity of the products using the GI logo or tagline thereby defeating the purpose of the guidelines itself. The article emphasizes about the absence of time limit in the application process and discretionary powers of DPIIT against unauthorized use. It contends for inclusion of monitoring system under the guidelines as the same is absent in the GI Act as well. The contention of lack of such provisions is disingenuous as the guidelines are limited to the use of GI logo and it would be more suitable for the legislature to implement adequate quality control provisions and mechanisms in the GI Act itself.

The article mentions about the lack of penal provisions in the guidelines for violations and seeks reforms in the GI regime for punishment of infringers along with a shift in the responsibility for ensuring the genuineness of products and initiating infringement actions. The article correctly points out this essential need for reforms in the Indian GI regime. The article discusses the inconsistencies in the Authorized User requirement as well as the data of the Registry. The article also states that approach of the government as followed in the guidelines and GI Act is of least intervention with a presumption that GI holders are capable of protecting their rights. This has been rightly indicated by the article as there is an intrinsic lack of awareness in the GI holders about their rights.

Conclusion

The article analyses and critiques various aspects of the guidelines in detail and raises certain pertinent questions about the effectiveness of the guidelines. It however fails to take note of certain limitations in the scope of guidelines and contends to overhaul the GI regime through the same. In spite of these limitations, the article rightly raises certain vital issues in the guidelines which are problematic in their scope and would need better implementation.

Endnotes

[1] Panel Report, European Communities-Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds174_e.htm

[2] Panel Report, European Communities-Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds290_e.htm

[3] Council Regulation on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32012R1151&rid=1

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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