The Hindu Business Line : Geographical indication is a nomadic intellectual property in search of identity

GOLD Coast Indian takeaway Handi Ghandi has changed its logo after a fiery response from the family of iconic Indian independence leader Mahatma Gandhi, says www.townsvillebulletin.news.com in a June 26 report. "The Southport business changed its logo from a drawing of Gandhi holding an American-style Chinese takeaway box to a caricature of a more generic Indian man," it adds.

"The basmati controversy arose in 1997, when RiceTec, Inc of Alvin, Texas was given US Patent #5,663,484 on basmati rice lines and grains. In Thailand, the same US company was held to have patented and trademarked a jasmine rice (`Jasmati')," recounts a recent story about `institutionalised management of intellectual property at international agricultural research centres' on www.checkbiotech.org.

Again, basmati is `a matter of serious royal concern', notes Bangkok Post, in a report dated June 28.

Geography may be history, and distance may die. And if you're searching for what to read over the weekend, try "Geographical Indications: A Search for Identity" by Latha R. Nair and Rajendra Kumar, from LexisNexis (www.lexisnexis.co.in).

"A geographical indication or GI is a sign used on goods that have a specific geographical origin and possess qualities or a reputation that are due to that place of origin," is a definition available on www.wipo.int, the Web site of the World Intellectual Property Organization.

A few examples are: `Tuscany' for olive oil produced in a specific area of Italy, and `Roquefort' for cheese produced in France, as WIPO mentions; `Basmati Rice, Darjeeling Tea, Kanchipuram Silk Saree, Kolhapuri Chappal, and Aranmula Kannadi' that www.worldwideipr.com lists; and Scotch whisky, Havana cigars, Antigua coffee, Ceylon tea and Feta cheese that the book on hand mentions.

GIs are all about the culture, geography, traditions, heritage and traditional practices of peoples and countries, write Nair and Kumar, offering the book as an effort to understand "a branch of law imbued with the divine chemistry between man and nature". GI may be a noun or adjective, not necessarily a geographical name, that buyers would regard as being descriptive of the geographical origin of goods, explain the authors.

If one were allowed to use a GI as a trademark, it would mean private monopoly rights in the GI, "violating the collective rights of the legitimate users of the GI". However, a trademark and a GI may coexist, as in Teachers Scotch whisky, Lindt Swiss chocolate and Twining Darjeeling tea.

`Why do Geographical Indications matter to us?' asks Memo 03/160 of the European Commission, dated July 30, 2003 (http://europa.eu.int). "GIs provide added value to our producers. French GI cheeses are sold at a premium of 2 euro. Italian `Toscano' oil is sold at a premium of 20 per cent since it has been registered as a GI in 1998. Many of these products whose names are protected, are exported. Eighty-five per cent of French wine exports use GIs. Eighty per cent of EU exported spirits use GIs. GIs are the lifeline for 1,38,000 farms in France and 3,00,000 Italian employees."

To highlight how GI is being hijacked, the memo states that 6,000 million pounds of `Antigua Coffee' are produced in such region of Guatemala but 50,000 million pounds are sold under that name around the world and `Darjeeling' tea sold around the world is almost three times of what is produced in Darjeeling! This only proves that there is definitely a market for the genuine products indicated by GI, and a section of the consuming public, in their quest of quality, are being deceived, opine the authors.

GIs were used in ancient Egypt by brick-makers to indicate the origin-related resistance of bricks and stones with which pyramids were made, informs the EU's Web site. It seems in ancient Greece, Thasian wine from the island of Thasos in Macedonia fetched a price of 20 drachmas for 20 litres! One also learns that Parmigiano or Comté dates back to the 13th century and that Washington potatoes can be traced to the 19th century.

"The system used in France from the early part of the twentieth century is known as the appellation d'origine contrôlée (AOC)," informs Wikipedia. "Examples of products that have such `appellations of origin' include Tequila (spirits), Jaffa (oranges) and Bordeaux (wines)."

The Paris Convention for the Protection of Industrial Property 1883 spoke of `indications of source' and `appellations of origin'. The 1958 Lisbon Conference proposed, "Indications or appellations, the use of which in the course of trade is liable to mislead the public as to the nature, the origin, the manufacturing process, the characteristics, the suitability for their purpose... " but the US struck the word `origin', presumably to reserve the right of trans-Atlantic migrants "to replicate elements of their cultural moorings in the new environment", as the book points out.

The Paris Convention deals only with false indications, and not the misleading ones; yet, false indication may refer to "an indication used by a producer on a product produced in a place other than that identified by the indication", explain the authors, and refer to the Madrid Agreement. A useful stage in the evolution of recognition for GI was the 1975 Draft Treaty.

The first international agreement to use the phrase `geographical indication' was TRIPS (Trade Related Aspects of Intellectual Property Rights). "All products are covered by Article 22, which defines a standard level of protection. This says geographical indications have to be protected in order to avoid misleading the public and to prevent unfair competition," explains www.wto.org. "Article 23 provides a higher or enhanced level of protection for geographical indications for wines and spirits." Creation of a `multilateral register', and higher level of protection beyond wines and spirits are among the currently contentious issues.

The book devotes a chapter to some cases on GI, such as on Carlsbad salts, Pillsbury flour, Spanish Champagne, Harris Tweed, Spanish Sherry, and Havana Cigar. "Civil law system, by and large, insists on proof of statutory protection of GIs in the home country as well as the country where protection is sought," explain the authors. "The reputation and goodwill enjoyed by a GI is as good as irrelevant in such situations." A must-read section of the book is the one about `economics of GI protection', where the authors discuss not only turmeric and Kasmati but also Phu Quoc fish sauces of Vietnam, Aarogyappacha fruit of southern Kerala that has anti-stress and immunodulatory properties, and Ayahuasca drink produced by the Shaman tribe of the Amazon Basin.

What will happen if GIs are not protected? Genericide, say the authors, referring to "the process of gradual dilution of the source identifying function of a trademark and its passage into the public domain as a generic description of the product." As an antidote, Nair and Kumar prescribe that it is imperative for all the stakeholders of well-known GIs to regularly keep the supply chain integrity under audit.

For, "the fight for preservation of a GI is a never-ending one," even as geographical indication will continue to be "a nomadic intellectual property in search of identity", as the authors sombrely observe in their preface to the well-written book.

Economics@TheHindu.co.in

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Geographical indication is a nomadic intellectual property in search of identity