This article has been written by Miss Ananaya Shee, student of Narsee Monjee Institute of Management Studies, Bangalore.
ABSTRACT
TRIPS, short for Trade Related Aspects on Intellectual Property Rights which is basically an agreement international and legal in nature made between the members of the World Health Organization, also known as WTO. To be clear about the topic, Intellectual Property Rights, or IPR is nothing but the rights a person has which is provided to him for his own creation. It is not just any right but exclusive in nature which is given to the person creating it, giving him a right over his conception for a certain period of time.
We, being people of the legal field, have copyrights and patents popping up in our minds when we hear of intellectual property rights. To be fair, let me elaborate on that. IPR are divided into two main categories- (a)Copyrights and rights related to the same (b) Industrial property. Copyrights and the rights related to copyrights simply mean that the rights of various creators such as authors, singers, actors, you name it; all the artistic works which also include all music compositions, writings, etc. are protected. The rights stated are protected after namely fifty years of their death with the aim of giving it an encouragement and most importantly respecting and relishing the original work of the creators. The other category, i.e., industry property talks specifically about protecting the signs, can be also described as trademarks. For e.g., Samsung cannot change its logo from SAMSUNG to an icon of a half-eaten apple with a leaf. Other types of industry property deal with protection of innovation and technology. This is done with the aim of safeguarding the return on investment. This area covers safeguarding of inventions such as trade secrets, industrial designs, etc. which is protected by patents which is typically for an extent of 20 years (in the case of patents).
Now that we have established a brief idea of what is intellectual property rights, TRIPS agreement is an agreement which came into effect on 1st January, 1995. It is far by the most inclusively comprehensive international agreement. In this article, we shall discuss about what exactly is TRIPS agreement, the purpose of its coming into force, its general provisions, its enforcement and other provisions related to it which India’s approach to it.
This article covers the history of geographical indications, TRIPA and geographical indications and India’s approach on geographical indications.
Keywords: Intellectual property rights, protections, patents, trademarks, copyrights, property, creation, TRIPS, agreement.
INTRODUCTION
What is IPR?
When we think about intellectual property rights, we think of copyrights and patents because we work in the legal sector. To be fair, allow me to elaborate. IPR are classified into two categories: (a) copyrights and related rights, and (b) industrial property. Copyrights and copyright-related rights essentially mean that the rights of various artists, such as authors, singers, actors, and so on, are protected; all artistic works, including all music compositions, writings, and so on. The rights specified are protected fifty years after their death, with the goal of encouraging it and, most importantly, recognising and appreciating the artists’ original work. The other category, namely, industrial property, is concerned with the protection of signs, which can sometimes be referred to as trademarks. For example, Samsung cannot change their company logo from SAMSUNG to a symbol of a half-eaten apple with a leaf. Other sorts of industry property protect innovation and technology. This is done to protect the return on investment. This category includes the protection of inventions such as trade secrets, industrial designs, and so on, which are normally protected by patents for a period of 20 years (in the case of patents).
What is TRIPS agreement?
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all World Trade Organisation (WTO) member countries. It defines minimal requirements for national governments to regulate various forms of intellectual property (IP) as they apply to nationals of other WTO member nations. TRIPS was negotiated between 1989 and 1990 at the close of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) and is administered by the World Trade Organisation (WTO).
The TRIPS agreement was the first to incorporate intellectual property law into the multilateral trading system and remains the most comprehensive multilateral agreement on intellectual property to this day. Concerned that rich countries were insisting on an extremely restrictive interpretation of TRIPS, developing countries started a round of discussions in 2001 that resulted in the Doha Declaration. The Doha Declaration is a World Trade Organisation statement that explains the scope of TRIPS, declaring, for example, that TRIPS can and should be read in light of the purpose “to promote access to medicines for all.”
Basically, TRIPS needs WTO members to lay out copyright rights, including those of authors and other copyright holders, as well as holders of related rights, such as actors, recordings producers, and broadcasting businesses; geographical indications; industrial designs; integrated circuit layout-designs; patents; new plant varieties; trademarks; trade names; and undisclosed or confidential information.
Chapter 1- Geographical Indications
Geographical indications are a symbol or sign used in commodities to show their particular geographical origin and highlight what quality and distinction or how renowned that product is due to its roots. In order to be functioning or be said as a geographical indication, it needs to have a sign which shall identify as originating the product from a given place.
Geographical indications can also be said as place names (in some countries also words associated with a place) used to identify the origin and quality, reputation or other characteristics of products (for example, “Champagne”, “Tequila” or “Roquefort”).
Protection needed under TRIPS agreement is elaborated under 2 articles-
Article 22 covers all products which elaborates what is standard level of protection, it says GI need protection so that to prevent it from deceiving the public and to avoid unjust competition.
Article 23 gives a higher level of protection for GI for wines and spirits.
Chapter 2- History of protection of geographical indications
Despite the fact that formal protection of geographical indications (GIs) as part of intellectual property rights (IPR) came into being only in 1994 with the signing of the General Agreement on Tariffs and Trade (GATT) in April 1994, the provisions of Article 1 of the Paris Convention of 1883 included the protection of source or appellations and the prevention of unfair competition. Article 10 of the Paris Convention prohibited the use of a false indication of the origin of goods or the identity of the producer, manufacturer, or merchant, either directly or indirectly.
The Madrid Agreement of 1891 upheld the rules of the Paris Convention of 1883 and said that when a product’s particular attributes are due to its source of origin, such a source might be identified to explain and ensure the quality of that product.
Relevant laws, especially for trademark protection, were employed to protect customers from deceptive trade descriptions on the origin of the items, which is commonly referred to as “passing off.” The Lisbon Agreement of 1958, the actual predecessor of later TRIPS regulations, guaranteed the protection of Appellations of Origin and their international registration for the first time. It was envisioned under this Agreement to establish the system in two stages, first for domestic protection and later for international protection through the World Intellectual Property Organization (WIPO). For the first time, the Lisbon Agreement recognized that both natural and human factors might be involved in maintaining the quality of an item, even if it originated from a specific region. As a result, it recommended include any product that would qualify for such protection, such as handicrafts, art, pottery, textiles, and so on.
Chapter 3- TRIPS and geographical indicators
TRIPS Article 22 states that all governments must give legal opportunities in their own laws for the owners of GIs registered in their countries to prevent the use of a geographical designation that fraudulently indicates that the product is from somewhere else. Article 23 further specifies the right to ownership of GIs relating to the origin of wines and spirits, however Article 24 states that members are not required to protect a GI if it has become a generic phrase for characterizing the product in issue.
While TRIPS was quiet on the issue of multilateral registration of GIs, several countries desired such a provision at the Doha WTO meeting in 2001, in addition to the extension of the specific provision on wines and spirits to other products. Neither of these proposals has been accepted by all WTO or TRIPS Council members. The European Union advocates registration with legal force, however the United States is currently pushing for a ‘non-binding mechanism’ in which the WTO is just notified of GI registrations in member nations. Geographical indications, Florida oranges, Idaho potatoes, Washington apples, and other significant exceptions are treated as subsets of trademarks in the United States.
The European Union has a well-established legal system for the protection of geographical indications (GIs), which is an extension of its 1992 law. Beer, pasta, wool, and other products other than wines and spirits are also covered by Regulation No 692/2003. Furthermore, in Europe, any WTO member may object to the registration if there is evidence that the provision is being abused and the goods in issue does not qualify for protection.
Chapter-4 India’s approach
As a pioneering party of GATT and a member of the WTO, India was required to create a fully TRIPS compliant intellectual property (IP) system, including GI protection, before the transitional period ended on January 1, 2005. Geographical Indications of Goods (Registration and Protection) Act 1999 was the Indian legislation for the protection of GIs. The Act’s Rules were drafted in 2002, and the Act, coupled with the Geographical Indications of Goods (Registration and Protection Rules 2002), went into effect on September 15, 2003. The Indian Act allows for multilateral registrations of GIs, including those from non-Indian owners. The following cannot be registered as a GI under the Indian GI Act:
– Indications that would be likely to deceive, cause misunderstanding, or violate any law.
– Indication of scandalous or obscene matter, or of any matter likely to offend the religious sensibilities of any class or portion of Indian citizens.
– Indications that would otherwise be denied legal protection because they are considered to be generic names or indications of goods and, as a result, are not or have ceased to be protected in their place of origin, or have fallen out of use in that country.
– Indications that, while literally correct as a territory, area, or locality where the items originate, fraudulently portray to the public that the goods originate in another territory, region, or locality. Falsifying GIs might result in imprisonment and a fine under the Act. GIs are awarded ten years of protection, which can theoretically be renewed indefinitely.
Unlike TRIPS, which has unique provisions for wines and spirits in Article 23, the Indian Act has no discretionary provision to promote any special type of products.
Under the Act, GIs may be utilised for a wide range of products that deserve protection because the consumer associates the type, origin, and quality of the products with a certain geographical location. If they are not sufficiently protected, their reputation may be jeopardised, and their names may be inappropriately used for commercial advantage. As a result, the incorrect use of a GI may deceive the consumer, who feels that it is the genuine product from a specific geographical location and hence of high quality.
Since the inception of the Indian Geographical Indications Act in September 2003 until July 19, 2011, Indian authorities have registered over 150 GIs, with several applications still pending.
An examination of these registrations reveals that 60% are handicrafts from various parts of the country, 25% are agricultural products, and 8% are manufactured commodities. In the instance of Darjeeling tea, both the phrase and the emblem have been registered and are so protected from unauthorised use by third parties. Surprisingly, just three (Tirupathi laddu, Dharward peda, and Hyderabad haleem) are food-related. There are single registrations from the United Kingdom (Scotch whisky), Italy (cheese), France (Champagne), and Peru (Pisco) and US (Napa Valley wine).
Conclusion
GIs have received legitimacy as an intellectual protection mechanism as a result of their inclusion in TRIPS. However, unlike other forms of intellectual property such as patents, trademarks, and copyrights, international rules for protection have yet to be implemented in the majority of the world’s countries. Several questions concerning the harmonisation of existing regulations remain unresolved. Even more difficult are the issues of worldwide registration modalities and the expansion of Article 23 protection to other products. So far, only GIs connected to wines and spirits have provided protection from infringement, and infringement suits have been limited to those GIs. Consideration of GIs as part of the trademark regime is a mockery of the underlying issue of GI protection principles. While the TRIPS Council is cognizant of the complexities required in finalising an equitable system of protection acceptable to all Members, agreement on approaches and even proposals themselves has yet to materialise. The trade and economic implications of protecting GIs as intellectual property are even less obvious.
References
This article was originally written by MD Nair published on https://nopr.niscpr.res.in/bitstream/123456789/12694/1/JIPR%2016(5)%20429-430.pdf website. The full link is as follows-
https://nopr.niscpr.res.in/bitstream/123456789/12694/1/JIPR%2016(5)%20429-430.pdf
This article was originally written by the official website of World Health Organization published on https://www.wto.org/ website. The link for the same is herein. https://www.wto.org/english/tratop_e/trips_e/gi_e.htm