How to Publish GI application- landmark directions of IPAB

How to Publish GI application- landmark directions of IPAB

Section 13 of the GI Act 1999 provides for publication of GI application. The corresponding Rule is Rule 38 of GI Rules, which provides for publication in the concerned Journal.

I have already expressed by view   that this kind of narrow and limited circulation will not serve any purpose of publication of GI in terms of the scheme of the law in respect thereof.  Till date all the GI’s has been published only in the GI Journal. Consequently the GI laws are unable to meet the legislative intentions and its objective.

In a recent judgment delivered by Intellectual Property Appellate Board (IPAB) while adjudicating in the case titled Subhash Jewellery  Vs. Payyannur Pavithra Ring Artisans & Others has set aside the registration of the GI while holding that the publication was not proper. While passing a detailed and well reasoned judgment, it has held as under:-

“The lawmakers may consider introducing a provision which requires each applicant to effect a publication akin to the Section 4 Notice in the Land Acquisition Act. The fact of the filing of the application must be published in a newspaper having good circulation in the locality and in the language of the territory, region or locality which is the geographical origin of the goods in question. We are deliberately not using the word “vernacular” since that has such a patronizing colonial flavour, whichever language it may be it is an Indian language. There must also be affixture of public notice in prominent places in the territory, region or locality as the case may be. Only then, the artisans will know that a Geographical Indication has been applied for in respect of the goods that they are creating. We are aware that “a producer” includes the person who deals in this goods or selling those goods.”

In light of above, it is confirmed that all the registered GI’s in India have not been given due publication in terms of Section 13 of the GI Act.  It is high time that the Registrar of GI considers republishing the GI’s  in consonance with the findings of the IPAB. Till date not a single GI has been published in terms of the above directions. 

Darjeeling Tea- GI with European Council-objections admitted

The objections filed by Shri Rajeev Saraf to the Tea board, India application for registration of PGI with EC has been admitted and they have directed as under:-

" - invites the interested party the Tea Board, Kolkotta, India and the Indian objector to engage in appropriate consultations for a period of 6 months from the date of notification;

- invites the Tea Board, Kolkotta, India within 1 month after termination of the above mentioned six-month period at the latest to inform the commission of the results of these consultations preferably using the form in Annex IV of Commission Regulation (EC) No. 1898/2006"

The objective to file objections was to highlight the issues that the GI's can not be owned by the Government authorities and the principal stakeholders should be the true owners.

it is now for the Tea Board to act earnestly

Geographical Indications: it's limitation

The Indian Geographical indications laws have gone mills ahead but effectively making no headway to accomplish its objectives and mission.

This law applies to three categories of products i.e. Agriculture, Natural and Man-made having its Quality, Characteristic and Reputation.

The various products eligible and registered as Indian GI's produced and manufactured for centuries have undergone changes qua its quality, varieties and its nature. However the Indian GI Laws nowhere provides for incoporation the improvements and changes taking place pursuant to its registration.

This will lead to a huge loss and failure of justice as the eligible product have been undergoing lot of improvements, changes and quality variation. These would be now brought to stand still after its registration.

This is another burning issue which requires us to deliberate.

Geographical Indication- India-needs introspection

The Indian GI laws was notified in the year 2002. Till date 206 applications have been filed and 117 stands registered.

On paper it seems to be a excellent beginning but not even a single instance where the registered GI has been enforced viz a vis its spurious market. The registration papers are glorifying Government files and the Government officers glorifies themselves by these data's and records. The sufferers are the principal stakeholders of these traditional knowledge and

A couple of years ago, I expressed my apprehension about the State owning GI's will be a complete failure, which now stands proved. Factually more than 95% of registered GI's are owned by Government agencies and not by the corresponding stakeholders.

Certainly it is high time we have an introspection and act correctly.

GI of Darjeeling Tea with European Council challenged

The Tea Board is the Indian GI owner of the Darjeeling Tea. Tea Board constituted under the Tea Act 1935 is a statutory body meant to regulate its exports and trade.

In India its registration has been challenged solely on the ground that the Tea Board cannot be GI owner as they are not part of its value chain and/ or its producer. The objections are pending adjudication before the Registrar GI, Chennai.

Concealing its pendency, the Tea Board applied for GI of registration with European Council. The same has been put to public notice and objections have been filed within statutory period of six months.

There are more than 68000 farmers associated with Darjeeling Tea and they are its true owners.

So for right cause, it is necessary that the Tea board while doing its statutory duties under Tea Act 1935 should not exceed its jurisdiction and powers and handover the Darjeeling Tea GI to its rightful owners.

Establish GI offices in India

Presently we have only one office for GI registration at Chennai covering entire country.

As of now more than 200 GIs applications has been filed from India and by other countries.

IP values are gaining tremendous significance in today’s fast moving world. It is thus imperative to have GI’s offices across India like other IP Offices. I have written to the Controller General of Patents, Trade Marks and Registrar of GI for issuing necessary orders in this respect for establishing GI branch offices like other IP offices. While protecting traditional values, ti will facilitate principal stake holders and save their hardships to move Chennai from time to time.

I wish other fellow citizens to join this move.

India: Intellectual Property Rights: Maheshwar Sarees & fabric- GI applied

India: Intellectual Property Rights: Maheshwar Sarees & fabric- GI applied

Maheshwar Sarees & fabric- GI applied

A joint application by a Weavers association (NGO) and Department of Hand loom (MP) has applied for GI of Maheshwar Sarees & Fabric, with the office of Registrar of GI, Chennai.

Traditionally produced in Dsitrict Kahrgoan, Madhya Pradesh owes its root to the ancient ear of Maharani Ahilybai. The Fort built in her regime and its scriptures are woven by the weavers of Maehswar on the Boarders and Pallav of its products.

This cluster is unique among all the hand loom clusters in Inida as its demand is much higher than its production. It has around 1800 looms and is the second major hand loom cluster after Chanderi.

Once registered it will be a great economic boom for its weavers and their trade activities. it will not increase their earnings but shall also help them to act against spurious products, beside gving its a legal recognition.

Darjeeling Tea GI with European Council

Darjeeling Tea is the undisputed premium Indian product having huge International repute. It is a 150 years old product providing employment to around 67,000 growers (60% of these are women), with a total output of around 850 million kilograms.

The Tea Board, a Statutory Body under Tea Act constituted with an objective of promoting and protecting Tea Export claims itself to the representative of growers. Based upon such representation, they were accorded GI status in India. Such claim however is not flowing from statute. As stated earlier, the same is under challenge and the cancellation proceeding are sub judice before the Registrar of GI, Chennai.

The magnitude and economic credibility has no bearing with its claim to hold GI. However, the GI being a Traditional Knowledge is to be held by its true rightful owners i.e. farmers/growers and not by an export regulating authority such as Tea Board.

Concealing all these facts, recently the Tea Board applied for GI with European Council. Undoubtedly doing so is in our nation’s interest. But the fact that Tea Board is under no statutory obligation to do so and cannot claim it to be the holder of GI, cannot be brushed aside and ignored. They are not representing the interests of 67000 growers and thus cannot claim themselves to be in representative capacity.

Vide notice dated 17^th November to Tea Board (Copy to the Secretary DIPP and the Hon’ble the Prime Minister), Mr. Rajiv Saraf has requested them to provide membership to all 67000 growers, incorporate it as its statutory duty, constitute an independent GI Body to protect and manage the GI of Darjeeling Tea and to claim so at international forums thereafter. The present incapacity of Tea Board to hold GI is apparent from that they hold no statutory mandate and/ or authority to hold such rights.

I hope good conscious will prevail and the Tea Board shall amend its way towards protection of such precious and valuable product. It would be better if they confine to their statutory duties rather than encroaching upon the rights of others by using their big banner.

Darjeeling Tea- Is it registered as GI?

Darjeeling Tea, is one of India's premium product has a big export potential. The Tea Board has got Darjeeling Tea (word) and Darjeeling Tea(logo) registered as Trade mark and Copyright and also as Geographical Indications (GI).

The Geographical Indication Act 1999 provides for registration of product as such and not for the words and logos. Darjeeling Tea as one of India's product has not been registered till yet as GI. The registration of Darjeeling Tea (word & Logo) will not automatically include the registration of the concerned product as GI.

This is highly confusing as to whether the Darjeeling Tea Word & Logo qualifies for registration of Trade mark and GI simultaneously.

Though The GI Act mandates for cancellation of confusing and overlapping Trade Marks and GI, but till date it is not done. The qualifying standards and parameters for registration as Trade Mark and GI are different and are not overlapping.

The Tea Board as statutory body has spent huge public money on publicity and so called protection of IP Rights of Darjeeling tea but they lacks clarity as to what and in which manner they wish to protect Darjeeling Tea.

The fact still remains that Darjeeling Tea as a product has not been registered till yet, though claimed to be so by the Tea Board.

GI- India- Need introspection

The GI Act promulgated in the 1999 and implemented from15th September 2002 with a sole office at Chennai on papers seems to be highly effective. It has entertained around 150 GI applications and more than 90 has been registered till date.

However the ground reality is different. The volume of applications is due to various awareness workshops, seminars across country organized by the international and national development agencies.

The GI is of larger public significance can be seen from the fact that this is the only Indian law for protecting collective rights of public at large relating to Agriculture, Natural and Manmade products.

The Controller General of Patents and Trade Mark is the Registrar of GI as per Section 3 of the GI Act 1999. Whereas the Controller General has office at Mumbai and is continuously operating from there only. The importance attached to GI work can be seen from the fact that the same has been delegated and assigned to a junior functionary of the rank of Assistant Registrar, though not legally permissible as discussed in my earlier blog.

Even the disclosures made by the office of Controller General under RTI shows that he has no role to play under GI Act. They have coined Procedure Manual for Trade Marks, Patents etc. but not for GI Registry. There is no prescribed procedure for GI Registry as to how it will scrutinized applications, process it, timeframe and responsibilities and time frame corresponding to the applicant. The staff strength is only 5 consisting of peons as well. There is no working procedure.

The GI Act mandates the filing of application by the persons or group of persons associated with the concerned product, but none of the application has been scrutinized in light thereof and Government and its agencies are filing applications own there own having no concern with the concerned product. The data speaks that the GI granted to Government agencies have not at all made any headway. Having only one office at Chennai is deprivation of opportunity and limit there accessibility to the applicants, which is already discussed in my earlier blogs.

Apparently there is no priority and importance attached to the GI Registry. In light thereof we need to have introspection and corrective measures.

Reliance GI of JamNagar petroleum- cancelled. GI Registry acts at the dictates of Reliance

• With an extra ordinary speed of approximately 30 days, the Indian GI Registry not only notified the applications but was also generous by illegally allowing Reliance for clubbing their four applications into one application. Undoubtedly there was a clear abuse of Government machinery run on public money for illegal benefiting Reliance and protecting there illegal design to capture generic product like oil. There was financial loss to the public exchequer by doing so.
• A couple of person from India and from UK including me filed objections to such acceptance by the Registrar GI. After long wait and realizing that they shall not succeed in capturing generic product like Oil, Reliance moved for withdrawal of their application.
• The Registrar GI as usual acted as per their choice and allowed withdrawal without imposing any cost/fine on Reliance for wasting Public money, hundreds of hours of public officers beside wasting four years to achieve their commercial designs.
• Finally the notification of Jamnagar GI has been canceled. Not at the instance of the Government but due to the couple of public objections.
• Why the Government of India acts at the behest and personal dictates of such large commercial establishments, still an unanswered question.

Indian GI’s- How far effective?

Around 90 GI’s has been registered with around 150 such applications has been filed in India for registration. However there has no evaluation of its functioning and effectiveness. Though registered for last more than 5 years but none of them has proceeded further.and made any headway.

Though there is a mad rush for applying for GI registration and the Government which is classified as s supporting stakeholder, has taken over the task of registration claiming to be representing the wider interest of the principal stakeholders.

This has proved to be a futile exercise till date. Though unfortunate, but a fact that none of the registered GI is India has made any commercial or economical gains from it. Why so? There are numerous reasons for the same.

Firstly the registration certificate issued of registered GI’s is like a Trade Mark registration certificate. Logically and prudently the GI registration certificate should contain its Quality, characteristic, reputation features and the basis of its unique identification. This is however not contained in the certificate so issued.

Secondly it does not contain the geographical area for which it’s registered.

Thirdly it also doesn’t contain the names and authorized users and its proprietor.

Fourthly there is no registration done by the GI registry for the authorized users. None of the notified GI’s in India contains the list of authorized users which is not only mandatory but also logically desirable so as to classify the legal users and producers.

Fifthly, the Government owned GI can never be implemented and enforced. There is no direct right conferred upon the producers of the concerned GI. Such GI’s can never be a success. The GI rights should be owned by the principal stakeholder i.e. producers and not by the Government sponsored Organizations.

The process of filing opposition is highly defective as the objectors are denied access to the GI registration application so filed. Unless and until they are furnished with a copy thereof, no one can file effective objections.

With this kind of prevailing situation, none of the researchers, writer and person associated with GI has examined or raised such issues which are predominately renders registered GI a ineffective and a practical nullity.

Reliance Jamnagar-GI-Withdrawn

The Public objections filed by me to the registration of GI of Jamangar Petroleum by Reliance Company was listed for hearing on 22 July 2009. By this notified GI, the Reliance was making efforts to capture public property i.e petroleum products. Earlier the GI Registry acted with amazing speed in clubbing and notifying the four GI in record period of one month.

Last week, the Reliance has moved an application to the Regsitrar GI seeking permission to withdraw their application without citing any reasons for doing so.

The decision of the Registrar GI is still awaited. I do hope that the Registrar GI shall keep in mind the huge loss casued to the public exchequer by filing such frivilous application and the fruitless efforts made by the gigantic business house.

Nailing of Geographical Indication laws in India

The Registrar of GI, India Mr. P.H. Kurian vide its order dated 3^rd June 2009 has delegated his powers as Registrar under GI Act 1999 to Shri GL Verma, Assistant Registrar except the power to head the Consultative Committee and handle issues covered by Chapter VI of the Act relating to rectification and cancellation of GI. The same is done under Section 3 (2) of the GI Act.

There is no power conferred upon the Registrar under GI Act to delegate the functions assigned to him. Section 3 (2) only empowers the Central Government to appoint additional employees under the superintendence and control of the Registrar to assist him.

The Role, powers and functions of the Registrar cannot be further delegated. This is an absolutely illegal order on the part of the Registrar.

I feel that such an illegal order shall further worsen the existing GI scenario in India. None of the GI in India has been judicially scrutinized till date. None of them is registered in conformity with the law.

It is going to be disastrous to the GI laws in India

Copyright and Suprme Court of India

2008 (36) PTC 1 (SC)  Eastern Book Company     Vs  D.B. Modak & Anr.

Copyright to editorial and notes based upon the Court judgments/ verdicts was the issue in this case. The apex court after examining the law relating to the same has laid down that no one has copyright upon the text of judgments and verdicts. The apex court held that laying Copyright on the editorial notes of the judgment shall create multiple Copyright. The editorial notes or footnotes are not the creativity by the individual but resulting from the generic source i.e. court judgment and which falls within public domain. This case lays down new dimensions to the Copyright law and its interpretation. To lay any claim of Copyright, it is thus mandatory to have some creativity and novelty apart from skill and judgment.

IP Rights & Case study

This court case was filed by Microsoft against Mr. A. Jain, who was indulging into circulation of spurious and pirated copies of MICROSOFT WINDOW XP Professional Version 2002. The High Court of Delhi in its final judgment has held Mr. A. Jain liable for circulation of pirated editions of Microsoft software and also granted them damages of Rs. Five Lakhs.  Further the High Court of Delhi in contempt proceedings imposed fine of Rupees One Lakh for misbehaving showing utter disregard to the Court’s directions.

(2008 (36) PTC 346 (del.)   Microsoft Corporation Vs. A. jain)

Darjeeling Tea - GI & its Cancellation

A GI Cancellation application was filed by Shri Rajeev Saraf, New Delhi on various grounds earlier reported. Pursuant thereof, the GI Registry, India through its letter dated 27.04.2009 has advised the Proprietor i.e. Tea Board, Kolkotta to move for rectification of their GI.

The GI Registry is not bold enough to cancel the Darjeeling Tea GI but it flows from their conduct, as they have now advised the Darjeeling Tea owner Tea Board, Kolkotta to move for rectification. Whereas they hold no such legal sanctity. Apparently the Registry officials now feel cornered and are acting in cover up manner. 

They have always assumed power which is not legally vested. My continuous pleas qua wrong GI registration, unhealthy practices, illegal acts and consequently sending negative signals by the GI Registry is now vindicated. 

The “Heritage” NGO and Basmati GI

The Show Cause notice proposing the rejection of basmati GI application, issued by the Geographical Indications Registry, was heard by the Registrar of GI on 5^th march 2009. After marathon hearing, the Show cause Notice stands withdrawn and fresh Examination Report has been assured to be issued.

This set at rest the prolonged controversy that the Heritage application stand rejected. The Heritage is a Haryana based NGO run and governed by farmers. Their application covers all Traditional and improved varieties of Basmati (11).

Another application stated to have been recently filed by APEDA is by its NGO namely BEDF having only Exporters as its members, with no participation of farmers and no future plans to involve farmers in their activities.      Keep watching. 

GEOGRAPHICAL INDICATION OF ‘DARJEELING TEA’-CHALLENGED

Darjeeling Tea, one of the worlds famous and a premium Geographical Indications from India  was registered as first Indian GI with office of The Registrar of GI, Chennai. This was pursuant to the enforcement of GI Act 1999.

 

It has been registered on the application filed by a statutory Body known as ‘Tea Board’ under ‘The Tea Act’, having its head office at Kolkotta. The ‘Tea Board’ is constituted with an objective to promote and protect export of ‘Darjeeling Tea’.

 

As earlier stated, the manner procedure and practice adopted by the office of The Registrar GI in India is highly illegal and arbitrary and is an example of sheer non- application of mind to the issues involved.

 

Section 11 of the GI Act postulates for an application to be filed by an authority established under law for protecting interest of growers/ producers.

 

The legal status The ‘Tea Board’ who filed an application for Darjeeling Tea, was not at all examined by the Registrar office at Chennai. Whether the ‘Tea Board’ is eligible under Section 11 of GI Act was never scrutinized. Not a single authorised user has been registered till yet. In consequence all the existing bonafide growers are made unauthorized users, as the GI Laws gives protection to only registered authorised users. 

 

Recently one Shri Rajeev Saraf from New Delhi, a highly Public spirited person, has taken up this cause of registration of GI’s in illegal manner by the office of the Registrar, Chennai and has moved a petition for cancellation of registered GI of ‘Darjeeling Tea’.

 

The objective of GI Laws in India is to protect the interests of its producers. All the growers of Darjeeling Tea are not the members of ‘Tea Board’ and nor the same has been constituted with an objective to protect the interests of Tea growers. It also lacks  mandate to apply and obtain protection under various Intellectual Property Rights/Laws for the growers.

 

There is no second thought that Darjeeling Tea is our nations pride and must be protected by eliminating its spurious market. But it would be highly undesirable to protect the same in manner as done now. Such kind of registration is bound to collapse sooner or later.

 

What we need is to do introspection as to whether the action undertaken by various Government agencies and other statutory authorities to themselves protect IP Rights is a correct act or not. Till yet such efforts have not yielded any positive results expect seminars after seminars and only projecting the higher number of registered GI’s in India. Further perpetuation of illegal acts shall render the wonderful concept of GI a nullity. What we need to reevaluate all our decisions and rectify errors.

 

The correct approach to protect GI should be to actively involve grass root Principal Stakeholders in the acts of protection of GI, constitute their legally sustainable body with no commercial objective and thereafter proceed under law for protection.