Open Access Research Article
Geographical Indications In India And The Missing Regulatory Framework On Post Registration Quality Control Measures (By-Shraddha Kamatagi)
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Article Details
Geographical
Indications In India And The Missing Regulatory Framework On Post Registration
Quality Control Measures
Authored By-Shraddha
Kamatagi
A Geographical Indication is a mark
which is used on products that have a specific geographical origin and possess
different qualities or a reputation that are because of that origin. Currently
all the awareness programs focusing only on registration process of Indian
Geographical Indications. At present promotion of geographical products has
been addressing all of the attention both in the domestic and international
market. Until now the introduction of the concept of post registration quality
control measures for the products which ate produced under the GI tag, has been
the completely forgotten or ignored in the legal framework. The present paper
focuses more onto the need for the introduction of post registration quality
control measures. The problems involving the boundary between the geographical
indication as a collective right and its connection with the quality and
product and processing ethics has been discussed in the paper. The legal
framework of the US and Europe relating to geographical indications, and the
quality control measures adopted by the countries, has been explained. The
paper includes some of the case studies have been highlighted to show the
statutory mechanism connected with the GI holding products in our country.
The paper concludes with the
recommendations for the decentralized instruments for different geographical
indications which are yet to be administered by an even legal framework is the
path towards advancement.
Key words Geographical Indications, quality
control measures, sui generis system, GI tag products, United States, European
Union.
Introduction
Intellectual Property Rights are
generally the exclusive rights given to a person for the innovations or the
creations which are results of his intellect. Geographical Indications is one
among the Intellectual Property Rights. This act provides for the process of
registration and the protection geographical indications. The definition
of term Geographical Indications is
covered under the Section 2(e) of the
Geographical Indications of Goods (Registration and Protection) Act, 1999[1],
which defines- ‘geographical indications’ in relation to goods, means 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 characteristics of such goods is essentially attributable
to its geographical origin and in case where such goods are manufactured goods
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.” In general, geographical indications are the identification
of goods which originate from a locality of a particular region and they
represent the quality, reputation and the geographical origin of the goods.
Currently there are about 370
products which are registered under the GI Act in India. Among which Karnataka
is state which is having the highest GI tags. It is having 42 products which
have GI tags. In the current times all the programs relating to GI appears to
be given importance only to the registration of products, but the quality
control measures are the least bothered or least discussed concept by the
law-making authorities. Quality has a direct connection with the economy of the
country, Indian GI law is to be modified and come up with the new measures for
quality stability.
Statement
Of Problem
Currently under the Indian Geographical
Indications regime, the regulations regarding the quality control measures
after registration of the GI products is not given importance. Due to these
missing regulations consumer is into trouble while choosing the products. GI
tag products are presumed to be of good quality but the same quality is not
maintained after registration, then the core objective of the Act cannot be
met.
Research
Objectives
·
To
determine the missing regulations regarding the quality control under Indian GI
Act,1999.
·
To
study the European Union’s sui generis system of protection of GI.
·
To
study the American system of quality maintenance schemes relating to GI.
·
To
recommend some of the regulations regarding quality control by analysing EU and
US’s regulatory framework.
Research
Questions
2. What method is adopted by the
European Union to maintain quality of GI products?
3. What are the regulations that are
followed by the United States to keep watch on the quality of the product after
registration?
Hypothesis
Regulations on post registration
quality control measures are inadequate under Geographical Indications Act,
1999.
Research
Methodology
The researcher has made an attempt in
using doctrinal method of research. The doctrinal approach is typical legal
research which includes referring to legal articles, books, legal research
papers and also commentaries. It focuses on case laws, statutes and other legal
resources. The doctrinal method is always descriptive, explanatory in nature
and sometimes critical and comparative analysis. The present paper is to study
the missing regulation on quality in India and the regulatory framework adopted
by the EU and US in maintaining the quality of the GI products.
Scope And
Limitation Of Study
The scope of the study encompasses
the absence of post registration quality control measures of Geographical
Indications in India.
The study is limited to Indian
Geographical Indications Act 1999, and encompasses with other legislations such
as American and European Union’s adoption of post registration quality control
measures.
Review Of
Literature
1.
Neetha Rose C. D and K. B. Umesh in their work, Expectation towards
Geographical Indications- Empirical Evidence from India has taken empirical
research on the whether the consumers accept the GI agricultural products as
good quality products and are they ready to pay some extra amount to buy such
products. The GI product for the empirical research was Palakkadan Matta Rice
of Kerala. They come out with conclusion that, registration of GI has been
increased in current times and it is an indication of origin so that it ensures
the quality of the product. It can be used as an instrument for guaranteeing
the quality. They have also written at the knowledge regarding the GI
registration is very low among the consumers. But they failed to come out with
the solutions or by ways which the consumers can be made aware regarding the GI
products and how the producers have to maintain quality for ensuring faith of
the consumers.
2. Yogesh Pai and Tania Singla in a paper, “Vanity GIs”:
India’s Legislation on Geographical Indications and the Missing
Regulatory Framework, have done a very beautiful work by recognising
the missing regulations regarding the quality of GI products. They have
explained the system followed by European Union and the America as regards to
the quality maintenance. Though the approach of both the countries is different
but the destination is same as to safeguard the interests of the consumers. The
work would be more helpful if the research would be empirical research, so that
the current situation as to quality maintenance of GI products would be
understood very well.
3. Tania Singla in Post registration quality
control measures for geographical indications, has given a comparative
study of quality maintenance in European Union and the US and clear picture as
to post registration quality control measures is given by
the Author. She has also referred to
some of the Indian cases on GI, as to know the statutory mechanism in India.
She has suggested a uniform statutory mechanism to over come the issues
relating to quality of GIs. But the reasons for the failure of Indian GI regime
as to quality maintenance are not completely explained.
4. Dr. B.L. Wadehra in his books has explained
everything regarding the Geographical Indications in a very simple language so
that the reader can easily understand the content. The process of registration,
case studies and the protection of GIs has been discussed in his book. But
there is no explanation of the concept, quality control of GI which is very
important from the view of a consumer.
5. V. K. Ahuja in his book on Intellectual
Property Rights has given a relevance on International and National
schemes of Geographical Indications. Even he has failed to explain the
regulations that are missing related to the quality maintenance of GI products.
6. In a work written by Kasturi Das,
regarding the Prospects and the Challenges of Geographical Indications,
explains the issues that currently faced by the manufacturers or the producers
of the GI products but failed to point out the problems faced by the consumers
of the GI products. The interest of the consumers is not given importance.
Geographical
Indications In India And Quality Maintenance
Geographical Indications have direct
relationship between the quality and the reputation of a product. They are not
only the sign of geographical origin but also the reputation and the quality of
the goods or the products. Consumers or the purchasers of the products usually
find it hard or problematic to find a product of good quality, because he is
less aware of the information regarding the product. But the producers are
fully informative about the goods and the quality of such products relative to
other goods. This is the core cause of the supply of low quality or supply of
duplicate products to the market and a consumer is exploited, as he has least
knowledge regarding the products. In such cases GI comes to the rescue of the
consumers, because the consumer has basic knowledge or information regarding
the GI tag products. Reputation and the quality play a very important role in
the marketplace. GI signifies quality and reputation of the products which in
turn assists the consumer by decreasing his efforts to search for a good
quality product.
One of the main objectives of
obtaining registration under GI Act is to generate a reputation in
the minds of the consumers, so that
they automatically are attracted towards the GI tag products other than non-GI
products. Sometimes they are even ready to pay high amount for the GI products
rather than buying non-GI products for lesser price, because they believe the
quality in the GI products. Same case is with the food products also, public at
large believes in certification of food stuffs. Certification of GI for food
and the maintenance of quality of such food stuff is of major importance.
Some of the cases discussed below to
understand the statutory mechanism of Indian law.
Darjeeling Tea Controversy
Darjeeling tea is a unique kind of
tea which is grown in West Bengal state. The case was that some companies were
indulged in marketing tea in the brand name of Darjeeling tea, which was not
actually produced in Darjeeling. The original producers of Darjeeling tea
started losing their income. That is the time when starting realising the need
to protect the geographical indications. At this times Geographical Indications
of Goods (Registration and Protection) bill was passed along with Geographical
Indications of Goods (Registration and Protection) Rules 2002. Darjeeling tea
was the first products to get GI tag in India, after the enforcement of this
act.
The Alphonso Mango Controversy
There was a temporary ban on the
import of mangoes (Alphonso) and some vegetables by the European Union in the
year 2014, which caused major disturbance between India and European Union’s
trade. Such decision was taken by the EU because the imported alphonso and
vegetables were filthy with fruit flies and some other flies. Though later the
ban was removed the registration of Alphonso mangoes is still pending in GI
registry because of the incident. After this the importance of quality
certification gained some importance. The compulsory inspection and certification
of agricultural products was delegated to APEDA (Agricultural and Processed
Food Products Export Development Authority). The Authority finalises the
standard foe exporting products so as to ensure quality.
These instances make sure that there
is a desperate need of quality regulatory mechanisms for GI.
European
And The American Regulatory Framewoks On Quality Control Measures
The European quality maintenance
scheme and the American quality scheme of the
certification marks, are the most leading examples of quality control
regulatory mechanisms.
The European Union’s sui generis
quality scheme
European Union was one of the
demanders of geographical indications protection during the TRIPS conference.
It has the very healthy issues resolving mechanism relating to the quality of
geographical indications products or goods. It has a very different approach
towards the quality control measures comparing to other nations. The European
Intellectual Property Laws recognize geographical indications as sui generis
rights. Sui generis means one of its kind or unique. Here sui generis right
means special right. Europe has passed many laws pertaining to the working of
geographical indications, there are many amendments to such laws also.
Presently the law which governs the geographical indications is Regulation
1151/2012, in this act protection is provided only to agricultural products and
the food products. There is a separate law which governs wines and spirits.
Currently European Union grants
protection only t0 agricultural products, extending of protection to
non-agricultural products is under discussion in the commission. The European
Union has not left the maintenance of quality of GI products aside, though
there is no specification of quality control measures in the TRIPS agreement.
Under Article 22 of the TRIPS agreement[2],
lays down only protection of geographical indication products, but does not
specify the requirement of standard quality maintenance of GI products.
European Union has adopted some standards for quality control, it has laid down
quality structures for assuring the quality of all European products. The
standards are mandatorily enforced by the competent officials who are appointed
by Member States who are responsible for the fulfilment with the legal
necessities regarding the quality schemes. The Reports of such activities
should be added in multi-annual and annual national control plans which are to
be submitted by every Member State.
At the time of registration of
geographical indication and its origin, the group which is applying for the
registration has to recognise one or more certification bodies, which will in
turn assist in ensuring the specifications related to the GI products are
fulfilled before they are supplied to the market. The working of such
certification bodies is inspected by the Competent Authorities. So that there
will be a check and balance on the geographical indication mechanism
The American quality schemes
The United States have a very
different approach towards quality control. They prefer regulatory model for
quality certification and implementation of geographical indications products.
The American law does not follow sui generis system of protection as followed
by the European Union, only wine is exception to the said regulation of the US.
Under US law, geographical indications can be protected under the trademark
protection. The primary statute protecting the geographical indications in US
is the Lahman Act, under which certification marks concept is in force. In this
Act certification mark is used to indicate geographical origin, quality,
manufacturing method, material used for manufacturing, also the work performed
by the members of the group in manufacturing of such products and the service
rendered by such groups.
Though there is no distinct
appreciation is approved to the GI products, under the American law, the
government plays an important role in safeguarding the quality connected with
the GI certified goods or products. It makes sure that the products are not
adulterated or diluted. Under Us law, the authority that is responsible for the
registration of the GIs, continuously have watch over the usage of geographical
term as a certification mark. There are inspectors to keep a watch on the
quality maintenance post registration for agricultural products and the food
stuffs under US government. If the prescribed standards are not maintained by
the producers or the manufacturers, consumers and competitors have right to
file opposition or cancellation of the certification mark in front of the
Federal Court. Though US follows regulations different from that of European
Union, the main objective of both the systems is to protect the interest of the
consumers by keeping watch on the quality maintenance.
Research
Question Answered
1. No, Indian Geographical Indications
Act 1999 read with Geographical Indication Rules 2000 do not have regulations
with regard to post registration quality control of GI product.
2. European Union has adopted Sui
generis system for maintaining the quality of GI product, where quality is
checked at every stage before supplying it to the market by the concerned
authority.
3. United States has a law called Lahman
Act under which GI is protected, they follow certification mark concept which
includes origin quality and reputation of the product. The authority always
keeps a watch on the proper usage of the certification marks.
If the quality is not maintained by
the producers or the manufacturer, the consumers are free to approach Federal
Court for the cancellation of registration of such products.
Hypothesis
Tested
It is tested from the above
discussion that there are no regulations regarding the quality control measures
after registration under the Geographical Indications Goods Act 1999 followed
by Geographical Indications Goods Rules 2002. The importance is given only to
the registration and protection of GIs, the rights of the GI holders, but not
to the interest of consumers.
Suggestions
The researcher recommends to make
some of the necessary changes and adoption of certain regulations to the
Geographical Indications Act 1999. They are as follows-
·
To
adopt necessary regulations for the quality control of GI tag products to the
Indian GI Act.
·
To
follow sui generis system of protection of GI’s as followed by European Union.
·
To
have a check on quality before supplying to the market, for which an authority
is to be appointed to have regular watch on quality.
·
To
appoint inspectors to check quality to inspect whether the set standard is met
or not.
·
Importance
is to be given to the interests of the consumers and the competitors in the
market.
·
If
the said quality is not met, then there should be provisions to cancel the
registration of the GI.
Conclusion
The geographical indications are not
only of the protection of rights of the producers of geographical indications
products but of quality of the product too. Producers or the manufacturers of
the GI tag products must also generate a good value of such products. The
current Indian law dealing with geographical indications has been borrowed from
the trademark act, it is more of rights of the producers or the manufacturers
of GI tag products. The concept of interest of the competitors and the
consumers is left behind under the Indian Law. European Union and the United
States’s GI regulation provides for maintenance of quality assurance and also
importance is given to consumer and competitor’s interest.
It would be better if India would
follow the European Union’s regulations of quality control. The regulations of
quality control of EU are applicable only to the agricultural products and food
stuffs but India would extend it to both agricultural and non-agricultural
products. It is also recommended to follow US regulation on quality control.
Appointment of inspectors for the certification of quality of the product.
Indian government must take initiation to insert regulations relating to
quality control without any further delay.
Bibliography
PRIMARY SOURCES (ACTS)
·
Geographical
Indications Goods (Registration and Protection) Act, 1999.
·
Geographical
Indications Goods (Registration and Protection) Rules, 2002.
BOOKS REFERRED
·
Dr.
B.L Wadehra, Law Relating to Intellectual Property, Universal Law Publications.
·
V.k
Ahuja, Law Relating to Intellectual Property Rights, Lexis Nexis (2013)
ARTICLES
·
Das,
Kasturi, Socio Economic Implications of Protecting Geographical Indication in
India, Centre for WTO Studies. August, 2009.
·
Neetha
Rose and K. B. Umesh, Expectation towards Geographical Indications- Empirical
Evidence from India. August 2012.
·
Tania
Singla, Post Registration Quality Control Measures for Geographical Indication
in India: The Way Forward, Indian J. Intell. Prop. L, 2014.
·
Yogesh
Pai and Tania Singla, “Vanity GIs”: India’s Legislation on Geographical
Indications and the Missing Regulatory Framework, SSRN, 2016.
ONLINE SOURCES
·
https://ec.europa.eu/info/food-farming-fisheries/food-safety-and-quality/certification/quality-labels/quality-schemes-explained_en accessed on 07/12/2021 at 9.12pm
Article Information
Geographical Indications In India And The Missing Regulatory Framework On Post Registration Quality Control Measures (By-Shraddha Kamatagi)
Author Name: Shraddha Kamatagi
Title: Geographical Indications In India And The Missing Regulatory Framework On Post Registration Quality Control Measures
Email Id: shradhakamatagi@gmail.com
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/01
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International Journal for Legal Research and Analysis
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