This article is the second of a two-part series on the introduction of logos and taglines for registered geographical indications (GIs) in India. The first part appeared in the previous issue of Asia Business Law Journal.
This is an opportune time to discuss the future course of GI and designation in India. The definition of a GIs is spelt out in chapter 1, section 2(e) as 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 characteristic 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”.
From the definition, a GI can be: (1) agricultural; (2) natural; or (3) manufactured. The GI identifies one of the above with a territory of the country where a given quality, reputation or other characteristic is attributable to its geographical origin. Interestingly, in the case of manufactured goods, it is sufficient to establish that any one of the activities related to the production or processing of the goods takes place in such territory.
Let us analyse the above definition in light of an earlier controversy surrounding registrability of “Rasagulla” as a GI. Rasagulla is an Indian sweet that is available in practically every part of India. It is traditionally associated with the state of Bengal, but admittedly there is no standardization, even within Bengal. The sweet tends to taste different in each outlet, even within the state of West Bengal.
Interpreting the definition of manufactured goods as per the Indian GI Act in the context of Rasagulla, it is evident that for West Bengal to get a GI registration for Rasagulla, one of the activities in the production process ought to have taken place in Bengal. This would lead to the conclusion that no Rasagulla made outside of Bengal can claim a GI. Further, all Rasagulla made in West Bengal ought to taste the same and be made in the same manner in order to be eligible for a GI. In the absence of standardization of a product, the purpose of a GI registration may not be quite served.
The solution to this problem probably lies in the EU regime for protection of GI. The EU has three schemes of protection, each of which has an attractive distinctive logo:
(1) Protected designation of origin (PDO), where the entire product must be traditionally and entirely manufactured (prepared, processed and produced) within the specific region, and thus acquire unique properties. Examples: Champagne, Prosciutto Toscano, Kalamata olive oil, and native Shetland wool.
(2) Protected geographical indication (PGI), where the entire product must be traditionally and at least partially manufactured (prepared, processed or produced) within the specific region and thus acquire unique properties. Examples: Lübecker Marzipan from Germany, Worcestershire cider/perry, and scotch whisky.
(3) Traditional Specialities Guaranteed (TSG) provides a protection regime for traditional food products of specific character. Differing from PDO and PGI, this quality scheme does not certify that the protected food product has a link to specific geographical area. Examples: Mozzarella cheese, Gueuze beer, and traditionally farmed Gloucestershire Old Spots pork.
To qualify for a TSG, a food must be of a “specific character”, and either its raw materials, production method or processing must be “traditional”. Under article 3 of regulation 1151/12 of the European Parliament, “specific character” is defined as “the characteristic production attributes which distinguish a product clearly from other similar products of the same category”.
Under article 3, “traditional” is defined as “proven usage on the domestic market for a period that allows transmission between generations; this period is to be at least 30 years.”
The legal function of the TSG is to certify that a particular product objectively possesses specific characteristics that differentiate it from all others in its category, and that its raw materials, composition or method of production have been consistent for a minimum of 30 years. Thus, TSG food denominations are registered trade signs with a distinctive function.
TSG may be an appropriate way to protect a traditional food product in India, which has a specific character, distinguishable from other similar products of the same category, and proven usage for at least 30 years.
The TSG provides an exclusive right over a registered product name, conforming to the registered production method and specifications. The new tagline, अतुल्य भारत की अमूल्य निधि (invaluable treasures of incredible India), in fact best describes the infinite and seamless varieties of traditional culinary delights that India is proud of.
The first anniversary of the launch of the GI logo in India marks the coming of age of the new collective IP awakening. Although there are several miles to be travelled, this is no doubt an important foot print in a positive direction.
Gowri Tirumurti is a partner and Purvasha Mansharamani is an associate at Anand and Anand