This article has been written by Ms. Shruti Verma, a 5th year student of National Law Institute University Bhopal.

INTRODUCTION

 The Geographical Indications (GI) system offers numerous benefits, particularly for developing countries like India. It serves as a form of protection and insurance for manufacturing activities in rural areas, where producers may lack the resources for branding, marketing skills, infrastructure, and legal awareness. The GI tag plays a vital role in creating brand equity for these indigenous producers, as seen in the case of Tequila manufacturers in Tequila, Mexico. Tequila has become one of the most economically successful non-European GIs.

However, the GI Act has faced criticism and has been deemed unsuccessful in certain aspects. One contention is that it has failed to adequately address the issue of genericide, which refers to the loss of a product’s unique identity due to becoming a generic term. Section 9 of the Act, which should narrow the scope of genericide, has been seen as problematic by some.

Another area of dissatisfaction relates to the Act’s policy implications. Critics argue that it lacks strict post-production control and support measures. These shortcomings result in difficulties regulating and ensuring the quality of products post-production, leading to potential dilution of the GI’s value.

The third issue concerns the perceived lack of scientific rigor in the GI-tagging of agricultural products. It is argued that the GI system should incorporate scientific criteria to validate and authenticate the unique characteristics associated with a specific geographical area.

Overall, while the GI system holds promise for boosting the economy of regions and supporting indigenous communities, it has faced challenges and criticisms. Addressing these issues is crucial for the effective implementation and success of the GI Act.  

LACK OF POST PRODUCTION

The Indian law provides measures for quality control in the registration of a geographical indication (GI). The application process outlined in Section 11 of the Geographical Indications of Goods (Registration and Protection) Act, 1999 requires the inclusion of information regarding the association or organization of producers, the specific territory and its natural and human factors, the class of goods, geographical map, and producer details. The application also suggests identifying an inspection body responsible for quality control within the GI. However, the non-existence of an inspection structure is not considered sufficient grounds for denying the registration of a GI.

Critics argue that the current legislative framework lacks teeth as it does not impose statutory liability on inspection bodies for failing to conduct periodic verification of compliance with product specifications. Under the current Act, if GI members or consumers want to hold a non-complying member accountable for not meeting quality standards, the only course of action available is the cancellation of their registration. The cancellation can be pursued through Section 27 of the Act, which allows for cancellation or variation of registration in case of contravention or failure to observe conditions. The order requires notice to the concerned parties and an opportunity to be heard. However, these mechanisms have proven to be inefficient in maintaining the quality of GI-tagged products and have allowed “free-riders” to emerge within the community.

Free-riders are GI members who choose to lower the quality of their products to compete with other GI producers or producers of similar products outside the GI market. This occurs when consumers are unaware of the distinctions between genuine GI products and impostors. To address this issue, the Act could mandate the establishment of inspection bodies responsible for preventing quality degradation. The minimum infrastructural requirements for these bodies could be set low to encourage registration by poorer communities, provided that efficient quality checks are conducted. Additionally, the government could consider providing monetary or infrastructural aid to these communities to protect the sanctity of the GI.

Despite the establishment of inspection bodies for many GI-tagged goods, they have not been able to effectively prevent infringements. This highlights the need for stronger mechanisms and resources to ensure the quality control and protection of GI products.  

CASE STUDIES

• THE BANARASI SAREE

The Banarasi saree, a GI-tagged product, has gained popularity among celebrities recently. However, the reality behind this traditional and fashionable item is the dire situation faced by its producers. The traditional weaver community involved in the production of Banarasi sarees suffers from widespread poverty and malnutrition. This has led to unfortunate consequences such as suicides among weavers and a shift from skilled to unskilled work. The evidence of these hardships can be seen in the benefits received under the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), indicating a significant decline in skilled workers.

Banarasi sarees have enjoyed a distinguished reputation since the Mughal era. The combination of fine silk, gold or silver brocade or zari work, and opulent embroidery has made them highly sought after. To protect the authenticity of Banarasi sarees, several organizations filed an application for GI registration in 2007, which was eventually secured in 2009. The application included the identification of five inspection bodies responsible for quality control, namely the Department of Handlooms (Government of Uttar Pradesh), the Development Commissioner (Handlooms), the Weavers’ Service Centre, the Master Weavers’ Self-Regulation, and the Textiles Committee.

Despite the GI registration and the use of certification marks such as the Silk mark and the Handloom mark, the reputation of Banarasi sarees has not been effectively protected. Inferior quality and counterfeit products claiming to be Banarasi sarees have penetrated the market to such an extent that ordinary Indian consumers can no longer be certain of the quality they are buying. Substandard Banarasi-style sarees made in Surat and China are frequently passed off as authentic Banarasi sarees in different Indian markets. This infiltration of counterfeit products undermines the collective reputation of genuine Banarasi sarees.

Efforts have been made to preserve the authenticity of Banarasi sarees and expand their market reach. For instance, the Silk Mark Organisation of India (SMOI), the owner of the SILK mark, introduced a high-security fusion label embedded with nanoparticles to verify the authenticity and purity of the silk used in Banarasi sarees. Additionally, new ideas have emerged to promote Banarasi sarees as “green products” to attract newer markets abroad.

However, despite these initiatives, the reputation of Banarasi sarees continues to suffer. To address this issue, it is crucial to improve the functioning of the inspection bodies responsible for maintaining the quality of Banarasi sarees. Stricter regulation and more rigorous inspections should be implemented to prevent the production and sale of substandard products. Furthermore, establishing a statutory body dedicated to ensuring compliance with quality standards and addressing complaints related to Banarasi sarees could be a valuable step. It is also important to provide alternative mechanisms for resolving disputes related to GI products to avoid lengthy and exhausting litigation.

By taking these measures, the integrity and reputation of Banarasi sarees can be preserved, benefiting both the weaver community and consumers. Restoring the glory of this iconic tradition requires concerted efforts to protect the authenticity and quality of Banarasi sarees in the marketplace.  

THE VENKATAGIRI SAREE

The Venkatagiri Handloom Saree, a geographically indicated (GI) product, is woven in Venkatagiri, Andhra Pradesh, using fine 100’s cotton yarn and adorned with zari in the pallu and border. However, despite obtaining the GI tag, the saree has faced challenges such as replication and misuse of its designs by power looms in Tamil Nadu. The lack of government support and inadequate awareness among weavers exacerbates the issue. The Department of Handicrafts provides limited support, focusing mainly on issuing identity cards rather than post-production assistance. While weavers suggest providing subsidized silk yarn and increasing publicity, their reluctance to take legal action suggests the need for alternative dispute resolution mechanisms. Hence, addressing these concerns is vital for the sustenance of the Venkatagiri saree industry.

THE PASHMINA SILK

The Pashmina Silk, a GI-tagged product, has been facing challenges from the powerloom industry, particularly in Amritsar, Punjab, where fake Pashmina products are being imitated and sold. This not only threatens the livelihood of local artisans but also brings disrepute to the handcrafted Kashmir Pashmina. The Craft Development Institute played a role in facilitating the GI registration, but the identification of an inspection body was suspended at the time. Although a testing center was established, local artisans allege that it exists only in name and lacks functionality. Efforts have been made to establish the Pashmina Testing and Quality Certification Centre to guarantee authenticity, but its effectiveness is yet to be proven. The issue of fake Pashmina products and the need for stronger quality control measures remains a prevalent concern that requires further attention and resolution.  

LACK OF SCIENTIFIC VIGOUR

One criticism of the Geographical Indications (GI) system in India is the lack of scientific rigor in defining the uniqueness of a product. It’s important to differentiate between product specialty and uniqueness. Product specialty is the result of geographical factors, while uniqueness can be due to a combination of geographical and non-geographical factors or solely due to non-geographical factors. 

When analyzing registered GIs, there is a noticeable absence of conceptual understanding and scientific rigor in defining the uniqueness of the products. For example, in the case of ‘Allahabad Surkha’, a statement in the GI Journal No. 19 describing the product as having “flesh whitish sometimes pink” could be confusing for customers. This description lacks precision and scientific clarity, making it difficult for consumers to make informed purchasing decisions based on the indicated uniqueness of the product.

Similarly, in the case of ‘Naga mircha’, the statement that it is “known as the hottest chili on earth” is not a scientifically established fact. This suggests a lack of rigorous scientific research and testing to support such claims. It becomes crucial for agricultural products under the GI system to undergo scientific evaluation to establish their unique characteristics accurately.

Both product specialty and uniqueness should be given equal emphasis in the GI system since consumer awareness of a product’s specialty can influence their decision-making process. When consumers are aware of a product’s specialty, they tend to place greater emphasis on its uniqueness as a determining factor for purchase. However, this critical information regarding the specialty and uniqueness of agricultural products is often absent in most registered agricultural GIs in the country.

To address this issue, it is necessary to initiate research initiatives and scientific studies to establish and define the uniqueness of agricultural products. This scientific approach will ensure accurate and reliable information about the product’s characteristics, enabling consumers to make well-informed choices. Incorporating scientific rigor in the definition and documentation of unique product features will enhance the credibility and value of the GI system, benefiting both producers and consumers.  

3) THE ISSUE OF GENERICIDE

One of the concerns raised with the Geographical Indications (GI) Act in India relates to the provision dealing with genericide, specifically Section 9 of the Act. This provision has been criticized for its potential adverse effects. Section 9 of the Act encompasses not only the consideration of the country of origin, as required by the TRIPS agreement, but also the areas of consumption, which goes beyond the obligations outlined in TRIPS.

The explanation provided in Section 9 of the Act states that when determining whether a name has become generic, all factors, including the existing situation in the region or place of origin and the area where the goods are consumed, must be taken into account.

Critics argue that TRIPS only requires consideration of the country of origin, while its predecessor, the Lisbon Agreement, had a similarly narrow scope in terms of consumption. By considering areas of consumption, the GI Act may unintentionally lead to a situation where traditional agricultural products and foodstuffs that have gained significant market reputation may become generic names.

This potentially occurs when producers in areas other than the place of origin also start producing these products on a large scale and selling them using the original geographical name or indication. As long as consumers are not misled, TRIPS does not prohibit such practices. An example of this is the case of Basmati Rice, where RiceTec claimed that the term “Basmati” had fallen into the public domain and become a generic name in North America. This situation can lead to confusion among consumers who may not understand the significance of RiceTec selling rice labeled as “Basmati” and may consider the term to be common or generic.

In essence, including the consideration of areas of consumption in Section 9 of the GI Act may create a potential trap where traditional agricultural products and foodstuffs lose their unique identity and become generic names. This issue raises concerns about the effectiveness and adherence to international obligations in the implementation of the GI Act in India.  

CASE STUDIES

DARJEELING TEA

The protection of Darjeeling tea against unauthorized use and misrepresentation has been a crucial concern. To safeguard its legal rights, the Tea Board of India has implemented strict quality control measures. They created the Darjeeling logo, which obtained certification as a trademark under the Indian Trade and Merchandise Marks Act. The logo was registered in multiple countries to prevent misuse. 

Additionally, when the Geographical Indications Act was enacted in 2003, the Tea Board applied for Geographical Indication (GI) protection for Darjeeling tea, which was granted in 2004. This made Darjeeling tea the first application to be registered as a GI in India.

The strict vigilance against violations and misrepresentation of Darjeeling tea extends beyond India. The Tea Board takes legal action against unauthorized use of the Darjeeling brand worldwide. This proactive approach ensures that the reputation and premium value of Darjeeling tea are protected, benefiting both consumers and the Darjeeling tea industry.  

CHANDERI

Chanderi, a town in Madhya Pradesh, India, is known for its handwoven Chanderi sarees and fabrics. Approximately 10,000 to 12,000 people in Chanderi are involved in weaving, with around 4,000 functioning looms. This industry generates an annual business worth Rs 65 crore.

Chanderi sarees are unique due to their transparent, shiny, and sheer fabric. The weaving style is meticulous, and the sarees feature individual woven booties, with the Asharfi Booti being the most popular and traditional motif, woven in gold and silver zari. Alongside sarees, Chanderi weavers also produce other products like dupattas, dress material, and home furnishings.

However, the authenticity of Chanderi sarees and the livelihood of its weavers face challenges from fake powerloom products produced in Varanasi and Surat. These imitations are sold at lower prices, leading to a decline in demand for genuine Chanderi sarees. The powerloom products closely resemble the handloom ones, making it difficult to differentiate between them. This decline in demand has resulted in loss of jobs and income for the weavers, leading to migration of the younger generation to urban areas and posing a threat to the survival of the Chanderi tradition.

In the past, weavers were dependent on exploitative traders and earned meager amounts for their work. Big traders and master weavers made substantial profits, while the smaller weavers, despite their high skill level, remained impoverished and vulnerable. There was no association representing the weavers’ interests, exacerbating their challenges.

To address these issues, a three-year Cluster Development Programme was launched in 2003 by the United Nations Industrial Development Organization (UNIDO) and the Madhya Pradesh government. The goal was to alleviate poverty and give voice and control to the weavers. Small networks of weavers were formed through Self-Help Groups (SHGs), providing them with a collective forum to address poverty and gain economic and social empowerment.

In summary, the Chanderi saree industry faces threats from cheaper powerloom imitations, leading to a decline in demand and income for the weavers. Efforts have been made to empower the weavers through collective forums and social development programs. However, further measures are needed to protect the authenticity of Chanderi sarees and ensure the sustainability of the weaving tradition.  

SUGGESTIONS

• Government needs to enforce post-production control even after a product obtains GI registration, as observed in the case of Venkatagiri Saree
• The idea of attaching a microchip to authenticate products, as seen in the case of Pashmina silk, could be a viable solution for ensuring authenticity
• Adulteration, poor value-based pricing, and consumer deception from counterfeit products could severely damage the reputation of products like Darjeeling Tea
• Prior to the advent of GI in India, the Tea Board of India proactively created a logo, registered it globally, and successfully protected the commercial and legal interests of Darjeeling Tea
• Successful GI implementation for Darjeeling Tea positioned it as a luxury product, justifying premium pricing and ensuring economic prosperity for stakeholders
• Producers of GI-tagged products should employ modern technology such as Compumark for strict legal vigilance against counterfeit products and consider registering IPR tags in other countries for effective protection
• Effective government intervention in the case of Chanderi fabric, supported by UNIDO, played a pivotal role in establishing Self-Help Groups (SHGs) and later a formal association, leading to successful GI registration
• Efforts of the Chanderi Development Foundation (CDF) resulted in GI registration, showcasing the impact of workers forming a structured collective to take the appropriate legal steps
• Inspection and supervision systems for quality control and infringement are often non-existent or non-functioning for most GI-tagged products, especially in the unorganized sector, necessitating infrastructural support, funding, and stakeholder involvement
• Creation of independent statutory bodies responsible for inspections and quality control is essential, balancing the interests of authentic GI-tagged product producers and quality-conscious consumers
• Continued marketing and promotional efforts post-GI registration, including e-commerce platforms, social media presence, and collaboration with digital platforms, led to global recognition of Chanderi fabric
• The widespread publicity from the 2010 Commonwealth Games and celebrity visits, along with effective rural tourism showcasing, propelled Chanderi into widespread demand nationally and globally
• The success of Chanderi fabric post-GI registration serves as a model for economic development and societal betterment, potentially inspiring other GI-tagged products and their respective societies  

CONCLUSION

The journey of Geographical Indications (GI) in India has been marked by asymmetry, with certain products facing significant challenges while others have achieved remarkable success. On one hand, renowned GI-tagged products such as Banarasi Saree, Venkatagiri Saree, and Pashmina Silk struggle to combat counterfeit products in the market. This results in the exploitation and lack of recognition for the indigenous producers, skilled weavers, and traditional artisans, ultimately depriving them of their rightful economic prosperity. Several obstacles have contributed to this situation. On the other hand, GI-tagged products like Darjeeling Tea and Chanderi Saree have emerged as success stories, fostering local economic growth, gaining global recognition, and establishing a prestigious reputation, leading to economic prosperity.

The significance of GI in India is substantial, given the abundance of GIs in both agricultural and non-agricultural sectors. However, the awareness of the GI Act among producers and traders regarding the social and economic benefits and significance is relatively low, indicating a need for increased education and understanding of the potential advantages offered by GI protection.

In conclusion, the challenges in preserving and promoting GI products in India are evident, with disparities in the success and protection of different GI-tagged products. The prevalence of counterfeit products poses a threat to the economic well-being of those involved in producing authentic GI items, highlighting the need for effective measures to combat this issue and ensure rightful recognition and prosperity for the traditional artisans and producers. Additionally, raising awareness about the benefits of GI protection among stakeholders is crucial for harnessing the full potential of this valuable system for India’s diverse range of geographical indications.  

REFERENCES

• The article, Marketing of GI Products: Unlocking their Commercial Potential, Centre for WTO Studies IIFT 10, 52 was originally written by Dr.Ruppal W Sharma & Ms. Shraddha Kulhari, published on The Centre for WTO Studies. The Link for the same is herein – https://wtocentre.iift.ac.in/Papers/Marketing%20of%20GI%20Products%20Unlocking%20their%20Commercial%20Potential.pdf
• The article, Prospects and Challenges of Geographical Indications in India, was originally written by Kasturi Das, published on The Journal of World Intellectual Property 13, 148 – 201 (2010). The link for the same is herein  https://onlinelibrary.wiley.com/doi/10.1111/j.1747-1796.2009.00363.x
• The article, Cloning the Chanderi, was originally written by Malini Nair, published on Times of India (June 21, 2015). The link for the same is herein https://timesofindia.indiatimes.com/topic/Cloning-the-Chanderi/news
• The article Brand Darjeeling is up, running now was originally written by Sutanuka Ghosal, published on The Economic Times (Jan 10, 2007) and the link for the same is herein https://economictimes.indiatimes.com/industry/cons-products/food/brand-darjeeling-is-up-runningnow/articleshow/1115909.cms?from=mdr
• The article, Indian Tea Industry In The Context Of Intellectual Property Right (Ipr) And Geographical Indication (GI), was originally submitted by Parag Shil& Suchismita Das and published on Asia Pacific Journal of Marketing & Management Review Vol.1 No. 2, October 2012, ISSN 2319-2836. The link for the same is herein https://www.researchgate.net/publication/281741233_INDIAN_TEA_INDUSTRY_IN_THE_CONTEXT_OF_INTELLECTUAL_PROPERTY_RIGHT_IPR_AND_GEOGRAPHICAL_INDICATION_GI
• The article, Darjeeling Tea -A Geographical Indication (GI), was originally submitted by Kaushik Basu, published on World Intellectual Property Organization, and the link for the same herein is https://www.wipo.int/edocs/mdocs/geoind/en/wipo_geo_lim_11/wipo_geo_lim_11_11.pdf.
• The Geographical Indications of Goods (Registration and Protection) Act, 1999, § 9
• The article, Commercialization of Indigenous Health Drinks as Geographical Indications, JIPR Vol. 16(2) 69, 173-174 (2011) was originally submitted by SK Soam& M Hussain, and published on Journal of Intellectual Property Rights Vol – 16 March 2011 pp 170-175. The link for the same is herein https://nopr.niscpr.res.in/bitstream/123456789/11575/1/JIPR%2016%282%29%20170-175.pdf
• The article, GI tag fails to help Venkatagiri Saree, was originally submitted by PV Prasad, and published on The Hans IndiaThe link for the same is herein https://www.thehansindia.com/posts/index/Andhra-Pradesh/2015-06-29/GI-tag-fails-to-help-Venkatagirisari/160174.
• Ministry of Textiles, Government of India, A Compendium of Indian Handicrafts & Handlooms covered under Geographical Indications (GI) 159 (2017).
• The article, Restore glory of the Banarasi sari (Dec. 21, 2012), was originally submitted by  Krishna Dwivedi et al., and the link for the same is herein  https://www.thehindubusinessline.com/opinion/Restore-glory-of-the-Banarasi-sari/article20543149.ece#
• The article, Geographical indications, terroir, and socioeconomic and ecological sustainability: The case of tequila, 25, J. Rural Stud. 108, 108 (2009) was originally submitted by Sarah Bowen & Ana Valenzuela Zapata and published on Journal of Rural Studies Vol- 22 January 2009 pp108-119. The link for the same is herein https://www.researchgate.net/publication/223814613_Geographical_indications_terroir_and_socioeconomic_and_ecological_sustainability_The_case_of_tequila
• The article, A Critique of the Indian Law and Approach towards Protection of Geographical Indications with Specific Reference to Genericide, JIPR Vol. 12 (6) 553,573 (2007) was originally submitted by  J Adithya Reddy & Siladitya Chatterjee and published on Journal of Intellectual Property Rights Vol 12, November 2007, pp 572-580. The link for the same is herein https://docs.manupatra.in/newsline/articles/Upload/5C6EE5C4-23BA-44EC-BA3B-6B51998B89F5.pdf