Geographical Indications and Passing Off In India: Safeguarding Traditional Crafts in the Global Marketplace
Introduction
Geographical indications (GIs) emerge as a conspicuous part of India’s rich cultural fabric that seldom go unnoticed. With the increase in globalization, it has seemed to encourage the erosion of these indicators which require special protection. This article examines some of the intertwined areas of GIs and passing off laws in India and offers an analysis of how these legal instruments protect traditional concepts in a competitive market.
Understanding Geographical Indications in India
Geographical indications (GIs), as defined by the World Intellectual Property Organisation (WIPO), are distinctive marks employed on items that come from a certain location and possess attributes or reputation that can be attributed to that particular region [1]. In India, the regulatory framework is established by the ‘Geographical Indications of Goods (Registration and Protection) Act, 1999’. [2].
India is blessed with a diverse table of GIs; the colourful ‘Ikat textiles of Pochampally of Telangana’; the aromatic ‘Darjeeling tea of West Bengal’ etc. These GIs act as a sign of quality and authenticity while also being the primary sources of incomes for age old communities keeping up their ancient customs and traditions.
Interaction of Passing Off and GIs
The tort of passing off that has its origin in the common law is a device that has been employed over the years to prevent the feeling of ambiguity as to the identity of goods or services. When in the context of GIs, it assumes a critical function, primarily as applied to unregistered indicators. The Golden Bottling Scotch Whisky Trade Mark Case (2006)[1] also proved that passing off actions are also available to protect GIs despite the fact that they have not been registered yet [3].
But as shall be seen, the challenge of proving passing off for GIs is not easy. The case of Tirupati Laddu (2009) explained the various issues that are associated with products that are part of cultural and religious practices of society [4]. It is therefore important that courts helm through the thin line between what reasonable measures are necessary in order ensure the rights of genuine producers while not straying too far in a manner that defeats the principle of competition.
This multiplicity in passing off cases involving GIs is again evident in the Nashik Grapes case (2010), wherein the court had to not only look at the geographical origin of the product but also to the characteristics associated with the product because of its geographical origin [5]. It was through this case that there was finally a grasp as to how the specific features made a GI product distinguished and made it come under the ambit of legal protection.
Reverse Passing Off: A Modern Threat to Traditional Crafts
Passing off is when a party has deliberately imitated the goods of another and presented them to the public as their own while reverse passing off is when a party presents its goods as being of another party. As such, this phenomenon is a dire threat to traditional craftsmen and artisans whose works may be co-opted from them. [1]
In the legal matter of Western Digital Technologies Inc. v. Raaj Computer[2], the court highlighted the potential for customers to be misled by the plaintiff’s portrayal of their goods as new and unused. Consequently, the claimant would experience financial and physical harm. Additionally, the court indicated that such actions could lead to the dilution of trademarks and the perpetuation of unfair trade practices. The DHC has concluded in passing off instances that the act of altering the labelling and printed circuit board of pre-owned hard disc drives and thereafter marketing them as new items constitutes a violation of trademark laws. Consequently, the court was delighted to grant an ex-parte temporary injunction in favour of Western Digital Tech. Inc.
Comparative Perspectives: The History of Sexuality in India and Beyond
It will be useful to compare India’s approach to GI protection with the approach of other jurisdictions. For example, the European Union has elaborate laws meant for protection of GIs especially for the agricultural products and food stuffs. The case of Consorzio del Prosciutto di Parma v. Asda Stores Ltd (2003)[3] in the European Court of Justice is the typical example of the EU’s strict protection of GIs [6].
Certification marks and collective marks are used to protect regional specialties in the United States. The ongoing saga on the use of the geographic term ‘Champagne’ in other sparkling wines that are not produced in the Champagne region of France goes to show the divergence of the GI protection around the world [7].
The Basmati Rice Controversy:
The controversy over Basmati rice is typical of the problems experienced by traditional goods in the modern world. RiceTec Inc. tried to patent Basmati rice varieties in the late 1990s provoking protests and legal actions around the world. In this particular case, India was also able to successfully contest several claims Nevertheless, the case showed how there is a need for a more active fight to safeguard traditional products [8]
Darjeeling Tea:
Darjeeling tea is been known as the Champagne of teas but in recent times it has been exposed to numerous hazards which is affecting its brand image. Some actions by the Tea Board of India such as legal actions against the GI infringers in many countries are evidence of the globalization of GI protection in the present age [9].
Pochampally Ikat: A woven legal protection for women in workplaces.
The registration of Pochampally Ikat as a GI in the year 2004 was a major achievement for the traditional weavers. Nevertheless, threats from low-quality reproductions remain an issue as an indication of the requirement to engage in constant monitoring and reporting and prosecution of individuals and corporations that attempt to deprive this art work of its authenticity [10].
Balancing Tradition and Progress
The possibility of protecting GIs under passing off and other legal measures is a rather tightrope. On one hand, there is the need for cultural conservation and, in essence, for the sustenance of marginalized traditional communities. On the other, extremely precautionary measures may provide adverse consequences of reduced rates of innovation and economic growth.
GI protection empowers local communities; it should therefore be done. The case of Chanderi fabric for which GI registration has brought improved income for weavers and the rejuvenation of the economy [11].
Technology has a twofold position in this context. As well as opening up threats through offering the opportunities for the replication and distribution of fakes, it provides opportunities. For example, blockchain technology is in the process of being considered as the best bet to underpin the accreditation and traceability of GI products [12].
Conclusion
As India is learning the intricacies of the relationship between the laws of geographical indications and passing off, it becomes even more pertinent to understand that traditions require their legal shields too. The problems are complex and complex solutions that respect ethnical identities and economic principles are needed.
But as for the future of the Indian legal system as a whole, there is work still to be done. Policing of GI rights must be enhanced, more effective and efficient technological solutions be sought, and international cooperation shall be encouraged so as to promote and protect the indigenous heritage of arts and crafts and other products of the country.
The struggle is still on to safeguard geographical indications of India. It has been a process which involves the creation of laws, the conservation of culture, and economic combat. As we move forward, the goal remains clear: to preserve the cultural identity of traditional crafts of India and help them adapt and grow successfully to the global market.
Author:– Ayushman Singh, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing.
References
- World Intellectual Property Organization. (n.d.). Geographical Indications. https://www.wipo.int/geo_indications/en/
- The Geographical Indications of Goods (Registration and Protection) Act, 1999. http://ipindia.nic.in/writereaddata/Portal/IPOAct/1_49_1_gi-act-1999.pdf
- Scotch Whisky Association v. Golden Bottling Limited, 2006 (32) PTC 656 Del.
- M/S Laxmi Devishree Balaji v. Controller General of Patents, Designs and Trademarks, WP(C) No. 8123 of 2009.
- Agricultural and Processed Food Products Export Development Authority v. Nashik Vintners Pvt. Ltd. and Ors., 2010 (44) PTC 374 (Bom).
- Case C-108/01, Consorzio del Prosciutto di Parma v. Asda Stores Ltd, 2003 E.C.R. I-5121.
- USPTO. (2015). Geographical Indication Protection in the United States. https://www.uspto.gov/sites/default/files/web/offices/dcom/olia/globalip/pdf/gi_system.pdf
- Chandola, H. V. (2006). Basmati Rice: Geographical Indication or Mis‐Indication. The Journal of World Intellectual Property, 9(2), 166-188.
- Jena, P. R., & Grote, U. (2012). Impact evaluation of traditional Basmati rice cultivation in Uttarakhand State of Northern India: What implications does it hold for Geographical Indications?. World Development, 40(9), 1895-1907.
- Vinayan, S. (2017). Geographical Indications in India: Issues and Challenges – An Overview. Journal of World Intellectual Property, 20(3-4), 119-132
- Rangnekar, D. (2010). The law and economics of geographical indications: Introduction to special issue of The Journal of World Intellectual Property. The Journal of World Intellectual Property, 13(2), 77-80.
- Rejeb, A., Keogh, J. G., & Treiblmaier, H. (2020). How Blockchain Technology Can Benefit Marketing: Six Pending Research Areas. Frontiers in Blockchain, 3,
[1] 129 (2006) DLT 423, 2006 (32) PTC 656 Del
[2] MANU/DE/3579/2022
[3] European Court of Justice ECR I-5121 (2003)
