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CHAPTER IV

GEOGRAPHICAL INDICATION AND TRADITIONAL KNOWLEDGE

4.1 Introduction

A geographical indication indicates that particular goods originate from a country, region

or locality and has some special characteristics, qualities or reputation, which is attributable to its

place of origin. Geographical indications are part and parcel of the cultures and traditions of a

country. They are, therefore, of considerable importance for countries, both developed and

developing.

Therefore, geographical indications the goods being produced there are human efforts,

resources, and environment of particular regions. Geographical indications have features that

respond to the needs of indigenous and local communities and farmers. Geographical indication:

• Are based on collective traditions and collective decision-making process;

• Reward traditions while allowing for continued evolution;

• Emphasize the relationship between human efforts, culture, land resources and

environment; and

• Are not freely transferable from one owner to another1.

1. For Various Issues On Geographical Indication, See Generally, Latha R. Nair and Rejendra Kumar Geographical Indication: Had A Research For Identity, (Butterworths, New Delhi, 2005); Surekha Vasishta and Amar Raj Lal, “Geographical Indication Of Goods (Registration And Protection) Act 1999”. In A. K. Kole and V.K. Ahuja (Ed.,), The Law of Intellectual Property Right: In Perspective and Retrospect, Delhi, (2001).

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At the international level four treaties deal with the definition of geographical indications.

These treaties are: (i) Paris Convention2 (ii) Madrid Agreement3 (iii) Lisbon Agreement4 (iv)

TRIPs Agreement5. In India the Geographical Indication Act, 19966 defines the term

“geographical indication”.

Before the TRIPS Agreement came into force, WIPO adopted the term “geographical

indications” as an all-inclusive concept to describe the subject matter of a new treaty for the

protection of AO under the Paris Convention and indications of source under the Lisbon Treaty.7

By adopting the term “geographical indications” and relating its definition to “quality,

reputation or other characteristic” of products, Art.22 of the TRIPS Agreement recognizes GIs in

the same context as developed in the WIPO process.8 Accordingly, domestic authorities

determine “quality” of a product, taking into account specific factual circumstances of the good.

2. Paris Convention for the Protection of Industrial Property, 1883 (Hereinafter Paris Convention). 3. Madrid Agreement for the Repression of False Indication of Origin, 1891, (Hereinafter Madrid Agreement). 4. Lisbon Agreement for the Protection of Applications of Origin and Their International Registration, 1958

(Hereinafter Lisbon Agreement). 5. Agreement on Trade Related Aspects of Intellectual Property Right, (Hereinafter TRIPS Agreement). 6. The Geographical Indication of Goods (Registration and Protection) Act, 1999, (Hereinafter Geographical

Indication Act, 1999). 7. WIPO , “Introduction to Intellectual Property,” (1997), p.18. 8. In his Article-by-Article Analysis of the Negotiating History of the TRIPS Agreement, Gervais, A Former Legal

Officer at the GATT/WTO - Confirms that the TRIPS Agreement Adopted the Concept of GIS Developed in the WIPO Process and Later Adopted by the European Communities. Carlos M. Correa, “Trade Related Aspects of Intellectual Property Right: A Commentary on the TRIPS Agreement”, (2007), p 209; Gervais, “The TRIPS Agreement,” (2008), p 293. Describing the definition of GIS under the TRIPS Agreement as a “Groundbreaking Nature”, Gervais asserts that the TRIPS Agreement adopted GIS as a More General Concept than AOS and Indications of Source. Gervais, “The TRIPS Agreement”, (1999), 21, European Intellectual Property Review, pp 156-159.

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“No one enterprise or even group of enterprises owns this distinctive sign and, therefore,

unlike trademarks, there is no right conferred on any entity to grant or refuse authorization on

use. Instead, all undertakings located in the specified geographical area are allowed to use the

geographical indication on the specified products produced by them”9.

Such geographical indications like ‘Champagne”, “Havana”, “Darjeeling” have acquired

a high reputation and become valuable commercial assets. In such a situation their

misappropriation, counterfeiting or forgery cannot be ruled out and hence there is also a need for

their legal protection.

4.2 WIPO Model Law on Geographical Indications

Having examined the sui generis form of protection adopted by some countries of the

world, it would be interesting to take a quick look at the Model Law on Geographical Indications

proposed by WIPO for adoption by developing countries in the year 1975. A model law is to act

as a model or a standard which may be adapted and customized to the local needs and conditions.

4.3 Indications of Source

The nation “Indications of Source” is used in Paris Convention Articles 1(2) and (10) and

the Madrid agreement (Agreement of Madrid for the Repression of false or Deceptive

Indications of Source on Goods (1967). A Clarification of the notion is available in Article 1(1)

of the Madrid Agreement which states that “all goods bearing a false or deceptive indication by

which one of the countries to which this agreement applies, or a place situated therein10,

9. Jayashree Watal, Intellectual Property Right in the W.T.O and Developing Countries, Oxford 2001, Third Impression, (2002), p.263. 10. WIPO-International Bureau , (2001).

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At the international level, a number of treaties (Paris Convention, Madrid Agreement and

Lisbon Agreement) administered by the World Intellectual Property Organization (WIPO)11

govern the regulation of geographical indications. WIPO explores new ways of enhancing the

international protection of geographical indication.

Since geographical indications tend to reward tradition-based commercial products, they

have been seen more as protector of traditional knowledge than a type of intellectual property

Right. On the other hand, a number of developing countries have realized that there is potential

under the geographical indications regime for protecting traditional knowledge12.

Switzerland is famous for watches; Scotland for scotch viskey, Paris for perfumes. India

is famous as the land of basmati rice, spices and such other popular products. Being the

subcontinent India is known for different cultures, traditions and heritage. Besides India is also

known for products like Basmati rice, Darjeeling tea, Coorg coffee, Andhra Pradesh Mangos,

Chilies, Price, and Hyderabad Bangles which are internationally known for certain quality.

The quality and characteristic feature of such products is attributable to the geographical

regions of India, which offers most suitable geographical conditions for the production of these

products. There is a need to protect these products having certain special qualities as

geographical indications in order to encourage their production and also to prevent others from

using the name and reputation of these products.

11. WIPO, “About Intellectual Property”, Geographical Indication?. 12. Philippe Collet, “Intellectual Property Protection and Sustainable Development”, (Lexis Nexis, New Delhi, Butterworth, 2005), p.333.

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As per the ministry of commerce in the year 2005 twenty eight geographical indications have

been registered that include Darjeeling tea, Kancheepuram silk, Mysore agarbathi, Madurai

sonagudi Coimbatore wet grinder and Mysore sandalwood soap. etc.13

There is an overlap of traditional knowledge and geographical indications because even

geographical indications are linked to the culture and traditions of a nation or a region thereof.

Daniel Gervais in his book, “The TRIPS Agreement: Drafting History and Analysis”14 has noted

the following elements of traditional knowledge to mean knowledge:

• Which is traditionally only to the extent that its creation and use are part of the

cultural traditions of a community-‘traditional’, therefore, does not necessarily

mean that the knowledge is ancient or static;

• Is representative of the cultural values of people and thus, is generally held

• collectively;

• Is not limited to any specific field of technology or the arts.

The Paris Convention for the protection of Industrial Property (the Paris Convention) was

concluded in the year 1883, and amended in 1979 it has 168 members.

4.4 Interplay between Geographical Indications and Traditional Knowledge

Geographical indications protect the property in the reputation attached to the

geographical region where the goods originate. Sulphate of magnesia is the chemical name for

Epsom salt.

13. Indian, Pakistan to File Joint Application for Basmati Geographical Indication Brand Protection to be sought in Europe and US, The Hindu Daily, Dated June 18, (2006), p.13. 14. Report of the Commission on Intellectual Property Right, set up the British Government, Published on 12. September, (2002), pp 76 -77.

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As discussed in the American case, City of CarIsbad et al v kutnow et al,15 originally

these salts came from the Epsom region in the US. However, today Epsom salt is used refer to

any sulphate of magnesia. To further explain the interplay between traditional knowledge and

geographical indications, the wound healing properties of turmeric, known to Indians for the last

so many centuries may be categorized as traditional knowledge. At the same time, turmeric is not

a geographical indication, but a generic name of a root of a plant available in most parts of the

globe and understood as such.

The Intellectual Property Right Commission Report, published on 12 September 2002 by

the Commission on Intellectual Property Right set up by the British Government to look at how

intellectual property might work for poor people and developing countries, says that surveys of

the existing protection of traditional knowledge and folklore show that geographical indications

are used to protect traditional products such as liquors, sauces and teas in Venezuela and

Vietnam.

4.5 Aranmula Kannadi

The name ‘Aranmula Kannadi’ has been accepted for registration as a geographical

indication under the (Indian) Geographical Indication of Goods (Registration and Protection) Act

1999 and published in the Geographical Indication Journal No.3 dated 1 November 200416.

According to the description forming part of the published extract, the origin of the Aranmula

mirror is as follows, this peculiar mirror is made out of copper and tin in a precise ration of

casting.

15. Available at http://www.wipo.int/treaties/en/documents/tdf/d-paris.pfd last visited on 29.04.2011. 16. Published in The Geographical Indication Journal No.3, dated 1, November, (2004).

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This traditional craft of making mirror technique is known only to the traditional and

skilled master craftsmen of a few families. There is a legend regarding the origin of this mirror.

About four hundred years ago, it is said, the chief priest of the Aranmula temple, himself a

patron of art and craft, bought in a few families of Kannadi or professional bronze casters from

Sankaran Koil, a small temple town located in Tirunelveli in the South end of Tamil Nadu and

settled them in his territory.

In return, they were to make bell metal vessels for the temple and they were able to make

an alloy resembling silver in colour which, when polished, stone and reflected like a true mirror

with divine help, it was believed and the wondrous alloy offered to deity which is even now

referred to as Kannadi Bimba (idol of mirror). Impressed by the special quality of the alloy, the

Kannadi continued to cast it and to make mirrors out of it was included (sic) among the

ashtamangalyam, the eight auspicious articles used in religious ceremonies, thus creating a

demand for these mirrors in that area. Since then, Aranmula is famous for these mysterious metal

mirrors. Truly speaking, Aranmula mirrors are a master piece in metallurgy and are quite

expensive to own17.

4.6 Ayahuasca18

Ayahuasca is a ceremonial drink produced by the Shaman tribe of the Azazon Basin by

processing the bark of Banisteriopsis Caapi grown in that region. Banisteriopsis Caapi, often

referred to as Yage is found in the tropical regions of Peru, Bolivia, Panama, Brazil, the Orinoco

of Venezuela and the Pacific Coast of Colombia/Ecuador.

17. A full text of the Report of the Commission is available at www.iprcommission.org. Last visited on 06.03.2014, p.79 of the Report. 18. Available at www.keralaedition.com last visited on 07.04.2014.

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Ayahuasca (roughly meaning ‘vine of the soul’ in translation from Quechua language)

has been used in the Amazon for thousands of years to heal and worship. It is said that the said

brew, widely used in Amazonia, enables access to the visionary or mythological world that

provides revelation, healing, and ontological security.

4.7 Ecological and Environmental Sustainability

Further, it is even argued by some that traditional production methods enhance social

capital by allowing community members to bond, work together and appreciate values like

patience and perseverance better.19 The solidarity displayed by the members of the SWA and the

Champagne houses in defending their collective Right in the respective geographical indications

held by them is also a case in point. The Traditional knowledge can be defined as the knowledge,

innovations and practices of indigenous peoples and local communities.20

The traditional knowledge is tradition based literary, artistic or scientific works,

performances, inventions, scientific discoveries, designs, marks names, and symbols;

undisclosed information, and all other tradition-based innovations and creations resulting from

intellectual activity in the industrial, scientific, literary, or artistic fields.21

19. Vice – President of the Thai Silk Association, Buntoon, Wongeselashote, The EU-China WTO Seminar, Beijing, 20, October, (2003). 20. The Expression “Traditional Knowledge” is used as a Shorter Form of “Traditional Knowledge, Innovations and Practices”, See E.G., The Convention on Biological Diversity, 5, 3 I.L.M. June ( 1992), p.818. 21. “Intellectual Property Needs and Expectations of Traditional Knowledge Holders”, WIPO Report on Fact

Finding Missions on Intellectual Property and Traditional Knowledge, (1998-1999). Sourced from http://Www.Wipo.Int/Tk/Entk/Ftm/Report/Final/Pdf/Part1.Pdf.WIPO. Acknowledges that a Singular and Exclusive Definition of Traditional Knowledge is Not Possible. This is Merely a Working definition.

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Traditional Knowledge plays an important role in resource management (pruning of

plants and domestication of animals to increase production) and environmental manipulation

(irrigation, encourage growth by burning tracts of land, etc.)22.

While the focus of what hitherto has largely been on indigenous peoples and their Right,

broadening the scope to agriculture, renders TK an issue of interest to farming communities

around the globe. Modern biotechnology in breeding of plant genetic resources may be

complemented by deliberate polices to support the use and conservation of traditional plant

genetic resources.

Traditional Cultural Expressions (TCEs) demonstrate that information includes cultural

expressions and is not limited to plant genetic resources. Such expressions are: Dance, Music,

Weaving and Pottery Patterns, other traditions of healing, cooking, cleaning and dressing.23 In

many developing and least developed countries, traditional medicines provide the only

affordable treatment available to poor people24.

4.8 The Basmati Controversy

The grant of US patent to RiceTec Inc. a US multinational company in the name of

Basmati necessitated the urgency of enacting law for protection of geographical indications.

After hard work of two and a half years, India put together the data and challenged the patents of

RiceTec Inc. in April 2000.

22. Sutton, M.Q and Anderson, E.N, Introduction to Cultural Ecology , (Walnut Creek, C.A.: Altamira Press, 2004), pp 96-124. 23. Cottier, T & Pannizzon, M, “Legal Perspectives on Traditional Knowledge: The Case for Intellectual Property Protection”, In 7(2) J.I.E.L., (2004), pp 371-373. 24. According to the WHO Fact Sheet No: 271, June 2002, in Developing Countries, up to 80% of the Population

Depend on Traditional Medicines to help meet their Healthcare Needs. Available at http://Www.Who.Int/Medicines/Organization/Factsheet271.doc last visited on 06.07.2013.

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The US Patent and Trademark Office (USPTO) issued patents to only three strains of

hybrid “Basmati” grain out of 20 claims developed by the RiceTec while rejecting a more

sweeping claim by the company. The three stains of Basmati to which protection was afforded,

were patently and noticeably different. The Basmati controversy was an eye opener and India

enacted the Geographical Indications of Goods (Registration and Protection) Act, 1999

(hereinafter an Act.). This is the first specific law which provides for the registration and

protection of geographical indications25.

The protection of trademarks and geographical indications, on the other hand, is aimed at

the protection of the goodwill and reputation of trade persons and their products26 and to prevent

the unauthorized use of such signs which is likely to mislead consumers. IP protection may

comprise property Right. Where property Right do exist, such as economic Right under

copyright, they enable the Right holder either positively to exercise the Right himself, to

authorize others to do so (i.e., the right can be licensed), and/or to prevent others from doing so.

Geographical indications are a form of protection that utilize the name of a region or area

where a product originates. Functioning in similar ways to trademarks and other forms of

labeling, GIs27 help a consumer to identify products and ensure that they have a certain quality

and reputation. Article 40 of the TRIPS agreement states that governments must provide legal

opportunities in their own laws for the protection of Geographical Indications28.

25. See Ahuja V. K , “Protection Of Geographical Indication : National And International Perspective”, 46, JILI, (2004), pp 273-274. 26. Downes, David R, "How Intellectual Property could be a tool to Protect Traditional Knowledge", Columbia Journal of Environmental Law, (2000), p.25. 27. Jane Anderson, “ Indigenous Traditional Knowledge, Intellectual Property”, Duke University School of Law, Center for the Study of the Public Domain. 28. India, For Example, has sought to Register Traditional Remedies and Ayurvedic Preparations as Protected

through GIS. See How the Indian Government Explains Geographical Indications available at http://Www.Patentoffice.Nic.In/Ipr/Gi/Geo_Ind.htm last visited on 19.01.2010.

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In such circumstances Geographical indications have the potential danger of granting

monopoly Right over knowledge to one region when that knowledge is, in reality, spread over

many regions. Bangladesh29 is a small country, with an area of about 147,570 sq km. The

geographical position and favorable climatic regimes have endowed a diverse range of flora. It

has been recorded that about 450 to 500 plants growing or available in Bangladesh have

therapeutic values30.

The rich heritage of indigenous knowledge associated with herbal medicine is considered

as the basis of all systems of traditional remedies in Bangladesh. Most of the medicinal plants of

Bangladesh are extensively used in the preparation of Unani, Ayurvedic and Homeopathic

medicines. These plants also serve as important raw materials for many modern medicinal

ingredients. Research on medicinal plants in Bangladesh mostly includes sporadic surveys in

different parts of the country and registers of local use and knowledge.

Unfortunately, these priceless resources have been fast depleting, mainly because of over

exploitation and change in land use31. Until now, few communities of Bangladesh, especially the

ethnic communities of the CHT have been traditionally using herbal medicine. It has been

unequivocally established that medicinal plants and associated knowledge, which represent a part

of rich local heritage, play a significant role in the general welfare of the upland communities of

CHT32.

29. Mohammad Abdul Motaleb, “Approaches to Conservation of Medicinal Plants and Traditional Knowledge, a

Focus on the Chittagong Hill Tracts”, IUCN (International Union for Conservation of Nature), KNCF (Keidanren Nature Conservation Fund), Bangladesh, (2010).

30. Yusuf, M.; Choudhury, J. U.; Wahab, M. A. And Begum, J. “Medicinal Plants of Bangladesh” Centre for Scientific and Industrial Research, Dhaka, Bangladesh, (1994). 31. Zuberi, M. I, Medicinal Plant Diversity: The Present Situation and Conservation Needs in Bangladesh, In:

The Role of Medicinal Plants Industry in Fostering Biodiversity Conservation and Rural Development, Karki, M. and Johari, R. (Eds.), Medicinal and Aromatic Plants, (1999).

32. Alam, M. K. “Ethnomedicobotany of the Marma Tribe of Bangladesh”, Economic Botany, 45 (3), (1992) pp 330-335.

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But if the daily headlines are any indication, the country's approach is shifting from this

traditional view. The front pages chronicle a rising tide of applications filed with a national

registry established pursuant to the Geographical Indication of Goods (Registration and

Protection) Act of 1999 (GI Act)33.

Required by TRIPs34 originally as a means to protect French makers of wines and

champagnes, the law gives trademark-like protection to distinctive goods or services whose

quality and reputation derive from the geographical area in which they are produced35.

In a country such as India, which has a vast cultural heritage and a store of traditional

knowledge dating back to the Vedas, the GI Act is seen as a potentially36 important source

recognition and income for India's rural poor the very same poor who otherwise have been

displaced and forced further into poverty by globalization.

One hope is that Geographical Indication37 (GI) protection will allow local artisans to

stay in their communities and fend for themselves, without having to renounce their traditional

work for life in the overcrowded cities.

33. No. 48, Acts of Parliament, 1999 [hereinafter GI Act]. The GI Act became effective in 2003. 34. Agreement on Trade-Related Aspects of Intellectual Property Right, Apr. 15, (1994), “Marrakesh Agreement

establishing the World Trade Organization, Annex IC, Legal Instruments? Results of the Uruguay Round”, arts. 22-24, (1869), U.N.T.S. 299, 33 I.L.M, 1197, hereinafter TRIPS, (2004).

35. Ghani, A., “Medicinal Plants of Bangladesh, Chemical Constituents and Uses”. Asiatic Society of Bangladesh Dhaka,( 1998), pp 1-460.

36. Khan, N. A.; Alam, M. K. and Khisa, S. K. (Eds), Farming Practices and Sustainable Development in the Chittagong Hill Tracts, Chittagong Hill Tracts Development Board, Government of Bangladesh and Village and Farm Forestry Project, Interco-operation, (2002), p.272.

37. Rashid, A. Z. M. M. and Rashid, M. H, the Status of Herbal Medicines in Bangladesh in of Popular Wisdom: Indigenous Knowledge and Practices in Bangladesh, Khan, N. A. and Sen, S. (Eds.), Bangladesh Resource Centre for Indigenous Knowledge, Dhaka, (2000), p.150.

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India in 2005, farmers and artisans38 from across the country were getting in line to

register their wares, from Darjeeling tea to Alfonso mangoes, Kolhapuri cheppals, Mysore silk

and sandalwood, and the uniquely woven sarees39 from the village of Pochampally in the shadow

of High-Tech Hyderabad.40 The list of applicants for Indian GI status is growing.

However, according to the WIPO Standing Committee on the Law of Trademarks,

industrial Designs and Geographical Indications "a geographical indications41 is best. Protected

under trademark and unfair competition law.

They gave examples of how Article 22 operates to ensure effective protection for GIs for

products other than wines and spirits include:42 -'Darjeeling' (India) for tea;43 'Stilton' (Great

Britain) for cheese;44 'Swiss' (Switzerland) for chocolate;45 and 'Roquefort' (France) for cheese46

protected by the US as registered certification marks. 'Suisse/Swiss' (Switzerland) for chocolate;

'Indian Spices India) for spices; 'Ceylon' (Sri Lanka) for tea; 'Florida' (US) for oranges;

'Freiburger' (Switzerland) for cheese; 'Stilton Cheese' (Great Britain) for cheese - protected by

Canada as registered certification marks.

38. Rashid, M. H. and Rashid, A. Z. M. M, the Prospects of Medicinal Plant Cultivation and Floriculture in the

upland Farming System. in: Farming Practices and Sustainable Development in the Chittagong Hill Tracts, Khan, N. A. (Eds.), Chittagong Hill Tracts Development Board and Swiss Agency for Development and Co-operation, (2002), p.272.

39. Madhavi Sunder, “The Invention of Traditional Knowledge Law and Contemporary Problems”, Vol. 70, No. 2, Cultural Environmentalism, Duke University School Of Law, (Spring, 2007), pp 97-124, 40. See Pochampally Paves the way for Local Intellectual Property Protection, ECON, TIMES, Dec. 19, (2004). 41. Suresh C. Srivastava, “Geographical Indications and Legal Framework in India”, Economic and Political

Weekly, Vol. 38, No. 38 (Sep. 20-26, 2003), pp 4022-4033, available at http://Www.Jstor.Org/Stable/4414050 last visited on 24.02.2015.

42. WTO, Communication dated June 15, (2001) from the Permanent mission of Australia, avaliable at http://www.dfat.gov.au/ip/aus_joint_paper.pdf, last visited on 06.03.2015. 43. Suresh C. Srivastava, “Geographical Indications and Legal Framework in India”, Economic and Political Weekly, Vol. 38, No. 38 (Sep. 20-26, 2003), pp 4022-4033, available at http://Www.Jstor.Org/Stable/4414050 last visited on 24.02.2015. 44. US Registration No 1,632,726, available at http://tarr.uspto.gov/, last visited on 09.05.2015. 45. US Registration No 1,959,589, available at http://tarr.uspto.gov/, last visited on 10.05.2015. 46. US Registration No 1,570,455, available at http://tarr.uspto.gov/, last visited on 23.05.2015.

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The WIPO standing committee while dealing with the conflict between trademark and

GIs observed: a geographical indication is best protected under trademark and unfair competition

law. Trademarks having acquired in good faith had to be protected against conflicting GIs.

A survey of decided cases reveals that Indian courts have maintained the action of

passing off to protect Geographical Indications. Scotch Whisky Association vs Pravara Sakhar

Shakar Karkhana Ltd47 is a leading case on this subject. In this case the plaintiff the Scotch

Whisky Association a company incorporated under the Companies Act of the United Kingdom

instituted the passing off action against the defendants; a manufacturer of various brands of

Indian whisky known as 'Blended Scotch Whisky' or 'Blended with Scotch', under various

brands, namely, 'Drun Beater' and 'God Tycoon'. On these facts the Bombay High Court held:

The plaintiffs have sufficient interest and locus stand to prevent passing off of Indian whisky

manufactured by defendant as 'Scotch whisky' and to prevent damage to reputation and goodwill

of Scotch whisky.

Prior to 1999, there was no specific legislation to regulate geographical indication. It was

in the year 1999 that India in compliance with its obligation under TRIPS Agreement enacted the

Geographical Indications of Goods (Registration and Protection) Act, 1999. This act seeks to

provide for registration and better protection GIs relating to goods. It excludes unauthorized

persons from misusing GIs.

The Indian judiciary has played a significant role particularly in the absence of any

enforced legislation to protect GIs. It has applied the common law principle of passing off as

suited under Indian conditions in cases of GIs.

47. AIR 1992 Bombay 294.

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Thus the Indian courts are giving effect to Articles 22 and 23 of the TRIPS Agreement

even before it has come into existence. A place-related name often provides meaningful

information48 about the quality or characteristics of a good.

WIPO to Modify the Paris Convention. The resistance of developing countries led by

Brazil and India based on the contention that intellectual property Right49 were the sole province

of WIPO because GATT could be concerned only with trade intangible goods50 wore thin when

the General Agreement on Trade in Services (GATS).

Both TK51 and GIs bear the potential to enhance diversification of products based upon

sustainable agriculture. Both concepts are specifically addressed in the Doha Ministerial

Declaration (DMD) of 14 November 2001 in paragraphs 18 and 19, respectively, relating to the

TRIPs Agreement52 Art. 8(j) CBD53, afforded the first time legal protection for TK, its protection

was to require a one‐time financial or technological reimbursement from the firm interested in

using the knowledge to the government in return for access to the resources54.

48. Jeongwook Suh and Alan Macpherson, “Study of Boseong Green Tea Area”, Wiley on behalf of the Royal Geographical Society, with the Institute of British geographers Vol. 39, No. 4, (2007), pp 518- 521, available at http://Www.Jstor.Org/Stable/40346073 last visited on 24.02.2015 49. Addor F And Grazioli A, “Geographical Indications beyond Wines and Spirits: A Roadmap for a Better Protection for Geographical Indications in the WTO TRIPS Agreement”, Journal of World Intellectual Property, (2002), pp 865-897. 50. Ajeet Mathur, “Who Owns Traditional Knowledge?”, Economic and Political Weekly, Vol. 38, No. 42 (Oct. 18-24, 2003), pp 4471-4481, available at http://www.jstor.org/stable/4414163,last visited on 24/02/2015. 51. Marion Panizzon,” Traditional Knowledge and Geographical Indications”, Foundations, Interests and Negotiating Positions, NCCR and World Trade Institute , Berne, Working Paper No. 2005/01, October, (2006). 52. See. Doha Ministerial Declaration, adopted 14 November 2001, WTO Document WT/MIN(01)/DEC/1 of 20 November 2001, [hereinafter Doha Declaration]. 53. See Cottier, T. & Panizzon, M., “Legal Perspectives on Traditional Knowledge: The Case for Intellectua

Property Protection”, in: Maskus, K. & Reichman, J.H. (eds.), International Public Goods and Transfer of Technology Under A Globalized Intellectual Property Regime, Cambridge, Cambridge University Press, Forthcoming May (2005).

54. See Art. 8(J): “Each Contracting Party shall, as far as Possible and as Appropriate: Subject to National Legislation, Respect, Preserve and Maintain Knowledge, Innovations and Practices of Indigenous and Local Communities Embodying Traditional Lifestyles Relevant for the Conservation and Sustainable use of Biological Diversity and Promote their wider Application with the Approval and Involvement of the Holders of such Knowledge, Innovations and Practices and Encourage the Equitable Sharing of the Benefits Arising From the Utilization of such Knowledge Innovations and Practices”.

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While TK expresses the local traditions of knowledge, GIs stand for specific

geographical origin of a typical product or production method. GIs and TK relate a product

(GIs), respectively a piece of information (TK), to a geographically confined people or a

particular region or locality.55

The WIPO Intergovernmental Conference identifies TCEs as: “(i) the preservation and

safeguarding of tangible and intangible cultural heritage; (ii) the promotion of cultural diversity;

(iii) the respect for cultural Right; and (iv) the promotion of creativity and innovation – including

that which is tradition‐based – as ingredients of sustainable economic development.”56

For example, the US Patent Office granted Natrol, Inc., a US‐based Company a US

patent for “kavatrol”, a dietary supplement that serves as a general relaxant, composed of Kava,

chamomile, hosps and schizandra57.

Two German companies, William Schwabe and Krewel‐Werke, obtained a patent for

Kava as a prescription drug for treating strokes, insomnia and Alzeimer’s disease. In France,

L’Oreal has patented the use of Kava against hair loss.

55. See TRIPS Art. 22.1 “Geographical Indications are, for the Purpose of this Agreement, Indications Which Identify a Good as Origination in the Territory of a Member, or a Region Or Locality in that Territory, Where a Given Quality, Reputation or other Characteristic of the Good is essentially Attributable to its Geographical Origin” (Emphasis Added).

56. See Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Fifth Session, Geneva, July 7‐15, 2003, Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions, Document Prepared by the Secretariat, WIPO Document WIPO/GRTKF/IC/5/3, 2 May 2003 [hereinafter WIPO, Consolidated Analysis].

57. Downes, D. & and Laird, S.A.,” Innovative Mechanisms for Sharing Benefits of Biodiversity and Related Knowledge: Case Studies on Geographical Indications and Trademarks’, in: UNCTAD Bio -Trade Initiative ”, Geneva, (1999), p.5.

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The Kava patent firstly raises the issue of pharmaceutical companies misappropriating

the knowledge of traditional communities about the healing propensities of Kava, in addition to

engaging in the biopiracy of the Kava plant’s genetic resources. Secondly, the existence of

patents based on Kava raises concerns about the conservation and protection of TK related to

Kava. An intellectual property right may not protect Kava because it is in the public domain and

there is no specific TK holder for it, who could apply for TK protection.

GIs it is agreed prove to be the second best option for protecting Kava by acting as a

substitute to patent protection of the TK related to the plant itself58. GIs have the potential to 59:

• Provide redress for the appropriation of folkloric indicia by enabling traditional

communities of a particular region to restrict which traders may use folkloric

geographical indications; and

• Promote the authentication of genuine folkloric products by permitting the use of

particular names to indicate that a product originates from a region of a particular

traditional community.

Geographical Indications are closely related to functions assigned to trademarks and are

well established in unfair competition law. Even if GIs have no property holder perse, they

nevertheless count towards an intellectual property right, because their benefit stream is the

geographical area in relation to the producer of a product.60

58. See Puri, K., “Is Traditional or Cultural Knowledge a form of Intellectual Property?” In: Oxford Electronic Journal of Intellectual Property Right, WP 01/00, available at: http://www.oiprc.ox.ac.uk/EJWP0100.pdf, pdf file version of the OHP slides and the accompanying Notes which were first presented at the Oxford University Intellectual Property Research Centre Research Seminar, on 18th January 2000 by Prof. Kamal Puri, on hold with the Authors, pp.7- 27.

59. Palethorpe, Stephen and Verhulst, Stefaan, "Report on the International Protection of Expressions of Folklore under Intellectual Property Law", European Commission, October (2000), available at http://www docstoc.corn/docs/965098/Europa Internal Market Intellectual Property, last visited on 07.03.2014.

60. Addor, F., Thumm, N. & Grazioli, A., “Geographical Indications, Important Issues for Industrialized and Developing Countries”, Institute of Prospective Technological Studies (IPTS) Report, May (2003), p.25. Geographical Indications and their Protection is a Suitable means to Protect Informal Innovation, Particularly because the Right is related to the Product itself and it does not depend to a Specific Right Holders.

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In addition to IPRs and competition law, GIs are subject to consumer laws, as they

embody the preference a consumer may express for locally produced goods. The benefit stream

(value) of TK is encapsulated in the intellect of the human mind, while the benefit stream of a

Geographical indication is a particular product originating in a particular geographical region.61

According to the World Health Organisation, up to 80 percent of the world’s population

depends on traditional medicine for its primary health needs. While the high cost of

pharmaceuticals is a factor in this, for many ailments traditional medicine is preferred, even by

many urban populations.62

A number of cases relating to traditional knowledge have attracted international attention.

As a result, the issue of traditional knowledge has been brought to the fore of the general debate

surrounding intellectual property. These cases involve what is often referred to as “biopiracy”.

“Biopiracy”63 has emerged as a term to describe the ways that corporations from the developed

world free ride on the genetic resources and traditional knowledge and technologies of the

developing countries. “Biopirates” are those individuals and companies accused of one or both of

the following acts:

• The misappropriation of genetic resources and /or traditional knowledge through the

patent system

• The unauthorized collection for commercial ends of generic resources and /or traditional

knowledge.

61. C.F., Drahos, P., “The Regulation of Public Goods, in 7 (2)”Journal of International Economic Law, (2004), p.328, on the expression benefit stream. 62. WHO Fact Sheet No.271, June (2002), available at http://www.who.int/medicines/organisaiton/trm/factsheet

271.doc last visited on 02.03.2015. 63. “Bio-Piracy” is a compound word consisting of “Bio”, which is short for “Biological” and “Piracy”. According

to the concise Oxford Dictionary “Piracy” means the following; (1) the Practice or an Act of Robbery of Ships at Sea; (2) a similar Practice or Act in other forms, especially Hijacking; and (3) the Infringement of Copyright.

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The examples of turmeric64 neem and ayahuasca illustrate the issues that can arise when

patent protection is granted to inventions relating to traditional knowledge which is already in the

public domain.

4.9 Other Justifications

Other possible reasons for protecting traditional knowledge are

• Equity considerations - the custodians of TK should receive fair compensation if the TK

leads to commercial gain.

• Conservation concern- the protection of TK contributes to the wider objective of

conserving the environment, bio-diversity and sustainable agricultural practices.

• Preservation of traditional practices and culture - protection of TK would be used to raise

the profile of the knowledge and the people entrusted with it both within and outside

communities.

• Promotion of its use and its importance to development.65

Linking the origin of product with the quality of the product is a well-established

objective of intellectual property protection, namely of Geographical indications.66

TK protection is not only limited to intellectual property. The varying scope of TK and its

different functions touch upon many fields of law, ranging from unfair competition, unjust

enrichment to contractual liability.67

64. The Turmeric Case was a Landmark Case as it was the First time that a Patent based on the Traditional Knowledge of a Developing Country had been successfully challenged.

65. Correa L, “Traditional Knowledge and Intellectual Property”, QUNO, Geneva, Available at http://hostings diplomacy.edu/quaker/new/doc/tkco/3.pdf, last visited on 01.04.2015, (2001). 66. Addor, F. and Grazioli, A., “Geographical Indications beyond Wines and Spirits- A Road Map for a Better

Protection for Geographical Indications in the WTO TRIPs Agreement”, 5(6) J.W.I.P., (2002), pp 865- 879. 67. Cottier, T., “The case for Protecting Traditional Knowledge and Geographical Indications in Agricultural

Trade”, World Trade Institute , University of Bern, Working Paper, (2003), p.370.

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There are several relevant international instruments tending to confirm the view that

indigenous peoples should have some legal control over the exploitation of their traditional

knowledge when such knowledge has special cultural significance. Art 7(1) of the international

Labour Organisation’s Revised Convention of 1989 recognises the right of indigenous peoples to

“decide their own priorities for the process of development as it affects their lives, beliefs,

institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise

control, to the extent possible, over their own economic, social and cultural development”.68

The overarching international legal framework is Agenda 21 that came out of the 1992

Earth Summit in Rio de Janeiro. Among Agenda 21 objectives of preserving biodiversity for

future generations, principle 22 emerges as recognition that indigenous peoples69 have a vital

role to play in environmental management and development because they dispose of alternative

answers and solutions to formal science in the form of TK.70

4.10 Plant Genetic Resources (PGR)

Since TK encapsulates information about plant genetic resources associated the idea with

international Intellectual Property Protection (IPRs).71

68. Stephenson Jr, “The Nexus between Intellectual Property Piracy, International Law, The Internet, and Cultural

Values”, 14 St.Thomas L.Rev, (2001), pp 324-328. 69. Indigenous and Trial Peoples Convention, 1989. It came into force on Sept.5, 1991. 70. See Agenda 21, United Nations Conference on Environment and Development (UNCED), Rio de Janeiro, 3014

June (1992), (The Earth Summit) available at http://www.un.org/geninfo/bp/enviro.html Last visited on 28.010.2014.

71. Downes R, “How Intellectual Property could be a Tool to Protect Traditional Knowledge”, 25 Colum.J.Envtl.L, (2000), p.255.

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Intellectual property law has been seen as a tool for promoting the conservation of

biological diversity, sustainable use of its components, and for ensuring that benefits arising

from the utilization of genetic resources are shared in a fair and equitable manner among the

relevant stakeholders.72 Intellectual property laws vary in nature and scope from one country to

another. Intellectual property protected in one country may not be recognized in another country.

Despite the existence of various international agreements that attempt to harmonize

intellectual property protection, there are still differences among national laws, especially those

regarding patents. For example, while the U.S.A. and countries in the European Union allow

patent protection over genetically engineered organisms which meet the normal requirements of

patentability, many other countries are opposed to extending patents to such subject matter73.

Though most of the systems of intellectual property protection are individualized, some

intellectual property Right, such as trademarks and geographical indications are based on the

concept of collective Right. A geographical indication identifies a good as originating from a

particular territory where a given quality, reputation, or other characteristic of the good is

essentially attributable to its geographical origin.74 They are not freely transferable from one

owner to another and can be recognized as long as the collective tradition is maintained. Since

they have to be periodically renewed, they can help in ensuring that the quality of the product is

maintained.75

72. Posey, “Intellectual Property Right for Native Peoples: Challenge to Science, Business, and International Law”,

(Paper presented at the International Symposium on Property Right , Biotechnology and Genetic Resources, Nairobi Kenya, (1991).

73. Greaves, “ Tribal Right” in Brush and Stravinsky (Eds.) Valuing Local Knowledge: Indigenous Peoples and Intellectual Property Right (Island Press, Covelo, 1996).

74. See Art.22 (1) of the TRIPs Agreement also see section 2 (1) (c) of the Geographical Indications of Goods (Registration and Protection Act 1999.

75. Downes, “How Intellectual Property could be a Tool to Protect Traditional Knowledge”, 25 Columbia Journal of Environmental Law (2002), p.253.

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Geographical indications may be used to enhance the commercial value of natural,

traditional and craft products of all kinds if their particular characteristics may be attributed to

their geographical origin. A number of products that come from various regions are the result of

traditional processes and knowledge implemented by one or more communities in a given region.

The special characteristics of those products are appreciated by the public and may be

symbolized by the indication of source used to identify the products.76

Geographical indications allow small local producers to enhance their reputations, and

sell directly to find users, thus competing more effectively against large corporations. When

others are excluded from using a particular name, an aura of uniqueness attaches to the product,

thereby enhancing its premium.77

‘Triphala’ is a medicinal power used for ailments of the stomach. The raw materials for

it are grown in a defined geographical area. It may be possible to treat ‘triphala’ as a

manufactured good and argue that the activity of preparation takes place in the defined area.78

This is because, according to the Geographical Indication Act, a geographical indication can be

obtained for a manufactured product if at least one of the activities of either the production or

processing or preparation of the goods concerned takes place in the defined territory. Thus it is

possible to have a geographical indication for ‘triphala’.

76. For example, Venezuela and Vietnam Protect Traditional Knowledge through Geographical Indications. Cocuy

the Pecay a liquor made from the a gave, in Venezuela, and Phu Quoc, fish soya sauce, and Shan Tuyet Moc Chau, a Variety of tea, in Vietnam are protected as Geographical Indications.

77. L. R. Nair & R Kumar, “Geographical Indications – A Search for Identity” , (Butterworths, New Delhi, 2005), p.193. 78. S. K. Soam, “Analysis of Prospective Geographical Indications of India”, 8, The Journal of World Intellectual Property, (2005), p.679.

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Overall, geographical indications on their own provide some scope to protect traditional

knowledge but the protection remains limited insofar as indications are conceived as marketing

took and do not protect the knowledge related to the product.79

The statement issued by the WIPO Inter-Regional Meeting on Intellectual Property and

Traditional Knowledge organised in Chiang ray Thailand in November 2000, makes the point

quite clearly: “with the emergence to modern biotechnologies, genetic resources have assumed

increasing economic, scientific and commercial value to a wide range of stakeholders.

Traditional knowledge, whether or not associated with those resources, has also attracted

widespread attention form an enlarged audience, other traditional-based creations, such as

expressions of folklore, have at the same time taken on new economic and cultural significance

with a globalized information society”.80

While the TRIPs agreement of 1994 is silent on traditional knowledge, the Doha

Declaration of 2001 introduces traditional knowledge as an item for work on intellectual

property.

The protection of geographical indications is at the core of the EC’s and Switzerland’s

position in reforming their highly subsidized agriculture.81 The Basmati Rice case concerned the

protection of traditional knowledge and geographical indications82.

79. Philippe Cullet, Intellectual Property Protection and Sustainable Development, (Lexis Nexis: Butterworths, 2005), p.335. 80. WIPO Inter-Regional Meeting on Intellectual Property and Traditional Knowledge, meeting Statement: A

policy and Action Agenda for the Future (Nov.9-11, 2000). 81. Council Regulation (EC) 692/2003 8 April (2003) Amending Regulation (EEC) Nr.2031/92 “On the Protection

of Geographical Indications and Designation of Origin for Agricultural Products and Food Stuffs”, U.J.L. 99 (April 17, 2003), Domestic EC Law was recently Revised.

82. S. Lall, India and Pakistan: Geographical Indications – The Basmati Issue, paper delivered at the International Trademark Association Annual Meeting, Seattle, May 1999; “Geographical Indications: the Basmati Case”, in Integrating Intellectual Property Right and Development Policy, London, September 2002. See also N.S. Gopalakrishnan, “Protection of Traditional Knowledge - The Need for a Sui Generis Law in India”, The Journal of World Intellectual Property, Vol. 5, No 5, September (2002), p.725.

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In New Zealand the Trade Marks Act contains provisions that prevent the registration of

trademarks where their use or registration would be likely to offend a significant section of the

community, including the Maori83.

Geographical indications can create economic rewards for producers who use traditional

methods in the region where the product has been traditionally produced. For example,

Venezuela and Vietnam protect traditional knowledge through geographical indications. “Cocuy

the Pecaya”, a liquor made from the agave, in Venezuela, and “Phu Quoc”, fish soya sauce, and

“Shan Tuyet Moc Chau”, a variety of tea, in Vietnam are protected as geographical indications84.

Generally speaking, geographical indications are useful for a number of reasons:85

• They could protect and reward traditions while allowing innovation.

• They will emphasize the relationships between human cultures and their local land and

environment.

• They are not freely transferable from one owner to another.

• They can be maintained as long as the collection tradition is maintained.

“Since the earliest days in Europe, geographical indications were used to protect certain

industries.

83. New Zealand has noted that “Maori” is used to refer to the Indigenous People of New Zealand. New Zealand Trade Marks Act, 1953, as amended by the Trade Marks Amendment Act of 1994 and 2002. The 2002 act required the Commissioner to establish an Advisory Committee to provide Advice on the registrability of Trademarks which contain Maori Signs, such as Text or Imagery. This took into account the New Offensiveness test at Section 17(1) (b): an Absolute ground for Refusing Registration of a Trademark that would be likely to offend a Significant Section of the Community including Maori. See more T. Jackson, B.S. Waters, “ Intellectual Property in New Zealand”, Auckland, (2002).

84. No 13 of the WIPO Review of Existing Intellectual Protection of Traditional Knowledge, based on the Responses of the Countries on the WIPO Questionnaire WIPO/GRTKF/IC/3/7, Geneva, 13 June (2002). 85. R.A. Mashelkar FRS, The Role of Intellectual Property in Building Capacity for Innovation for Development: A Developing World Perspective, WIPO, May, (2000).

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As local reputations grew for certain products, use of the place names became attractive.

To some extent such markings served as a warranty for the quality of the goods. To ensure the

local reputation, the local industry would agree to certain standards of protection. The granting of

a right to use a geographical term associated with particular goods exclusively to the producers

within a certain region served to limit competition, especially from producers outside that

region”.86

The Lisbon Agreement for the Protection of Appellations of Origin and Their

International Registration is another more recent international instrument dealing with protective

measures. It was adopted in 1958 “as an attempt to achieve effective and enforceable protection

for geographical indications”.87

Though the current intellectual property regime tends not to take into consideration

indigenous concerns specifically, geographical indications are certainly a valuable protective

instrument for a number of reasons:88

• Geographical indications are based on collective traditions and a collective

decision-making process.

• Geographical indications protect and reward traditions while allowing evolution.

• Geographical indications emphasize the relationship between culture, land,

resources and environment.

86. Christine Haight Farley, “Conflicts between U.S. Law and International Treaties Concerning Geographical Indications”, Whitier Law Review, (2000). 87. Stacy D. Goldberg, “Who will Raise the White Flag: the Battle between the United States and the European Union over the Protection of Geographical Indications”, University of Pennsylvania, Journal of International Economic Law, Spring (2001). 88. David R. Downes and Sarah A. Laird, “Innovative Mechanisms for Sharing Benefits of Biodiversity and Related Knowledge: Case Studies on Geographical Indications and Trademarks”, UNCTAD , (1999).

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• Geographical indications are not freely transferable from own owner to another.

• Geographical indications are not subject to unconditional control by a private

owner.

• Geographical indications can be maintained as long as the collective tradition is

maintained.

This is especially important in the Indian context considering the wide variety of goods

that is deserving of protection ranging from agricultural products like Basmati, Darjeeling tea to

manufactured goods such as Banrasi sari, Kolhapure chappals, Chanderi silk etc. Section 11 of

the Act provides that any association of persons, producers, organization or authority established

by or under the law can apply for registration of a GI89.

Since the first Indian GI was registered in 2004, 172 GIs have been registered with the GI

Registry of India. Of these, more than half (64 per cent) are handicrafts, more than one fourth

(26 per cent) are agricultural products, and the remaining are food and manufacturing products.

The trend of GI registration has been mostly upward with the maximum number of products

registered in the year 2008 – 2009.

India, was first granted protection in 2008 – 2009 when Dharwad Pedha from Karnataka

was granted the status of a registered GI product. In terms of geographical distribution of GIs in

India, most GIs have been registered from the southern states.

89. Das, A. Geographical Indications: UNCTAD’s Initiative in India , Presentation at UNDP RCC, UNDP

Cambodia and Economic Institute of Cambodia, Phnom Penh, September 4, (2008), available at http://hdru.aprc.undp. org/ext./regional_workshop_2008/pdf/Das_ s3.pdf, last visited on 20.01.2012.

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GIs may especially facilitate protection of the collective Right of the rural and indigenous

communities in their indigenous knowledge, ensuring that the entire community which has

preserved the knowledge and has passed it on with incremental refinement over generations90,

stand to benefit from the knowledge and that this is not locked up as the private property of one

individual.

Other advantages of GIs are that the knowledge remains in the public domain, the scope

of protection is limited to controlling the class and/or location of people who may use the

protected indication and the Right can potentially be held in perpetuity as long as the

product-place link is maintained91.

In India, there are many GIs that are registered in the names of some central or state

government departments or bodies, yet there is no homogeneity among those initiatives and

involvements across states. A number of studies have also found that GIs could lead to exclusion

of many from enjoying the benefits92. Firms with better bargaining positions may also end up

making disproportionate share of the economic value generated from securing protection93.

90. Commission on Intellectual Property Right, “Integrating Intellectual Property Right and Development Policy”, London, (2004). 91. Dwivedi, K., S. Bhattacharjya, Restore Glory of the Banarasi Sari, the Hindu Business Line, December 21,

(2012), available at http://www.thehindubusinessline.com/opinion/restore-glory-of-the-banarasi-sari/ article4226412.ece, last visited on 25.07.2012.

92. Gopalakrishnan, N.S., P.S. Nair, A.K. Babu, “Exploring the Relationship between Geographical Indications and Traditional Knowledge: an Analysis of the Legal Tools for the Protection of Geographical Indications in Asia”, Working Paper, Geneva: International Centre for Trade and Sustainable Development (ICTSD), (2007).

93. Rangnekar, D, “The Socio-Economics of Geographical Indications, BRIDGES between Trade and Sustainable Development”, Vol. 8, No. 8, (2004), pp 20-21.

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The consultations indicated that the Banarasisari industry is impacted by a host of

variables in terms of raw material and labour issues, the socio-economic aspects of the region,

and, to some extent, the pitfalls of excessive liberalisation and legislation94.

4.11 Malabar Pepper

Malabar pepper is famous for its quality. It is classified under two grades – garbled and

un-garbled. In its ordinary use, the term refers to signs that are deployed in connection with

goods to indicate their geographical origin.95 Typical examples of well-known Geographical

Indications include Roquefort cheese, Idaho potatoes, Champagne, and Port wine. Widely known

Geographical Indication relevant products from developing countries include Basmati rice,

Aranyik knives, Darjeeling tea, and Pisco liquor.

In regard to terminology, it is worthwhile to discuss two interrelated concepts recognized

in the earliest international treaties: “appellations of origin” (AO) and “indications of source.”96

4.12 Geographical Indications Related Case Studies

It is often argued that proper protection to GIs could lead to socio-economic changes for

the producers of goods that also involve traditional knowledge.

94. Sahai, S., I. Barpujari, “Are Geographical Indications better suited to Protect Indigenous knowledge? A

developing Country Perspective”, (New Delhi: Gene Campaign, 2007), available at http://www.genecampaign.org/home_files/Gene_Briefing/Policy%20Brief-2.pdf,last visited on December 22, (2012).

95. See David Vivas Eugui & Christoph Spennemann, “The Treatment of Geographical Indications in Recent Regional and Bilateral Free Trade Agreements, in the Intellectual Property Debate: Perspectives from Law, Economics and Political Economy “, 305 (Meir Perez Pugatch ed., 2006).

96. The preamble to the TRIPS Agreement emphasizes that “Intellectual Property Right are Private Right” available to legal persons, implying that such Right are generally owned by Individuals or Corporations, and not by Communities, States, or Nations, see TRIPS Agreement, supra note 9, at pmbl.; Xavier Seuba, Human Right and Intellectual Property Right, in Intellectual Property and International Trade: The Trips Agreement 394 (Carlos M. Correa & Abdulqawi A. Yusuf eds., 2008).

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A limited case study of certain GIs, especially from India, is undertaken to find out the

potential of GIs to bring the protection of traditional knowledge97.

4.13 Value of Traditional Knowledge

Aranmula is a rural place in Pathanamthitta District of the State of Kerala in India98. This

is a rural area and the place is known for a peculiar type of metal (combination of tin and copper)

mirror called “Aranmula kannadi”. The high quality of the mirror, which is made of metal,

makes it different from ordinary mirror and is in great demand as a gift and as a keepsake item.

Only a few traditional families are engaged in the production of this metal mirror.

Their ancestral origin is from Sankaran koil near Tirunelveli in the State of Tamil Nadu.

They belong to the category of Viswakarma bronze smith. Their ancestors were brought to

Kerala from Tirunelveli approximately 500 years ago by the Maharaja of Travancore for the

construction of temples. They were given landed properties for residence, cremation and other

practical purposes by the Raja, and the present generation still possesses parts of the land given

to their ancestors.

The market price of a small mirror is more than Rs. 2000 ($ 50) and the price can go up

to Rs. 25,000 ($ 600) depending up on the size of the mirror. At present there are four families in

Aranmula continuing with the production and all of them are relatives. There are around 50

members who are involved in the business and all of them belong to middle class families.

97. SCT, “Geographical Indications”, March 25, (2003), SCT/10/4, para 10. 98. See available at http://www.aditimetalmirror.com last visited on 30.01.2015.

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The fact that they currently can make only reasonable profits shows that GIs could have a

significant impact on the socio-economic conditions of actual producers provided they could

prevent others from using it. Aranmula kannadi is now marketed nationally and internationally99.

The case of “Aranmula Kannadi” make it clear that traditional knowledge used in the

products of GIs could be protected effectively only if the knowledge is kept secret by the

producers and the GIs acquires unique reputation.

4.14 The Case of Kancheepuram Silk Sarees

Kancheepuram is a temple city in the State of Tamilnadu in South India, well known for

silk sarees by name “Kancheepuram Silk”. History of the craftsmanship and silk producing

tradition in Kancheepuram is very old and it can be traced back to more than 400 years.

Kancheepuram silk sarees are hand woven with dyed silk yarn and inter-leaved designs made

with “Zari”100. Originally, weaving in Kancheepuram was a pure community-based business by

the “Salia” community.

There are 21 registered co-operative societies in this field having total membership of

more than 30,000 weavers and about one million weavers who are not members of any society.

According to the official report 75 % of the population in Kancheepuram District is directly or

indirectly connected with saree industry.

99. See GI Application No.3, Government of India, Geographical Indication Journal, No.3, November 1, (2004). 100. Zari is a Silk Thread Twisted with a thin Silver Wire and then dipped in pure Gold.

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Kancheepuram saree is exported to Sri Lanka, Singapore, Hong Kong, England, Africa,

Aden, Gulf, U.S.A., U.K., Germany Italy and Russia. “Kancheepuram Silk” is a registered GI in

the name of the Department of Handlooms and Textiles, Government of Tamilnadu, in respect of

Textile Goods falling in class 24 & 25101.

4.15 Pochampally Ikat Handloom and Sarees

Pochampally is a small rural village in Nalgonda District of the State of Andhra Pradesh

in India, known for its very unique Ikat design for handloom silk and other cloth materials. The

weaving originally started with cotton material to produce “Rumal”200 for the rural people,

particularly for the Muslim community, who used it as a turban.

The attraction of Pochampally sarees is their colour combination and design. The

weavers achieve this through their traditional technique of “Tying and Dyeing”102. Historically,

this traditional technique of “Tying and Dyeing” was very secret and used only by the male

members of the family. They did not even allow their wives to see it. They are marketing their

product nationally and internationally. “Pochampally Ikat” is now a registered GI under the new

Act103.

4.16 The case of Balaramapuram Handloom

Balaramapuram, a rural area in the Thiruvananthapuram District of State of Kerala in

India, is known for cotton handlooms. The King brought five weaving families from Valliyoor,

Tirunalveli District of Tamilnadu, and a nearby State. They belonged to the Chalia community

and were brought to weave and supply cloths to the members of royal families.

101. See Official Notices, Government of India, Geographical Indication Journal, No.7, July 1, (2005), p.1. 102. Saree is one of the Traditional Dresses of women all over India particularly of South India. 103. Rumals are long piece of cloth used as turban to wear on the head.

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The major items manufactured from Balaramapuram are Pudava and Kavani104, Sarees,

Veshti105, bed sheets etc. The materials used for their weaving are cotton and Kasavu106. There is

an urgent need for the State to intervene to protect the GIs and its use.

4.17 Darjeeling Tea

Darjeeling tea is the world’s most expensive and exotically flavoured tea. Naturally

occurring quality and flavor has made it unique among teas. Darjeeling among teas may be

equated to champagne among wines107. It is a major export product of India and it was the first

GIs application filed in India under the Indian GIs Act. The Tea Board has also applied for the

registration of the name “Darjeeling” and the logo under clause 30 of the GIs Act, and the

registration has been granted108.

4.18 Ceylon Tea

Sri Lanka is known for its teas with unique flavors and aroma. The British sailor James

started tea plantation in 1867 in 19 acres of land. This has now spread over large areas mainly in

the central highland and southern inland generating a job opportunity for more than 3,000,000

people every day. The “Ceylon Tea” as it is traditionally known has a global market and the

major buyers are Australia, Europe, Japan, and North America.

104. For details see GI Application No.2, Government of India, Geographical Indication Journal, No.2, September 1, (2004), pp 3-6. 105. See Official Notices, Government of India, Geographical Indication Journal, No.4, January 1, (2005), p.7. 106. Pudava and Kavani is the Traditional Wedding Dress for the Bride in Kerala. 107. Veshti is the Traditional Dress of mail members of Kerala and South Indian. 108. Available at http://darjeeling.biography.ms/last visited on 30.07.2014

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Today, tea accounts for approximately 15 % of the agriculture exports of Sri Lanka. The

policy followed by the government after independence in 1948 and the economic liberalization

that took place since 1970 is responsible for this growth. This made private investment possible

in this sector taking it to further heights109.

Today Sri Lanka is the world’s third biggest tea producer and the industry is the main

source of foreign exchange earnings. The above case studies give a very clear picture that there

are different categories of GIs that contribute to the socio-economic conditions of the rural

people in the developing countries.

This also shows the limitation of GIs in providing positive protection to traditional

knowledge associated with GIs110. In 2002, the IGC accepted technical standards for the

documentation of TK developed at a WIPO meeting in Cochin, India. Both TK111 and GIs bear

the potential to enhance diversification of products based upon sustainable agriculture. Both

concepts are specifically addressed in the Doha Ministerial Declaration (DMD) of 14 November

2001 in paragraphs 18 and 19, respectively, relating to the TRIPs Agreement.112

109. Available at www.dtdrc.org last visited on 09.03.2015 110. See Government of India, Geographical Indication Journal, No1 July 1, 2004 and Official Notice, Government

of India, Geographical Indication Journal, No.4, January 1, 2005. 111. Marion Panizzon, Traditional Knowledge and Geographical Indications: Foundations, Interests and Negotiating Positions, October 2006. 112. See Doha Ministerial Declaration, adopted 14 November 2001, WTO Document WT/MIN(01)/DEC/1 of 20

November 2001, [hereinafter Doha Declaration].

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Traditional Knowledge (TK) is a concept of cultural ecology, which, for matters of equity

and sustainability, increasingly calls for legal protection as an emerging concept in international

law113.

4.19 Geographical Indications of Goods (Registration & Protection) Act

Geographical indications amongst IPRs are considered more amenable to the customary

practices of indigenous communities and believed to be more favorable for the protection of TK

in general. GIS are said to allow knowledge to remain in the public, with Right potentially held

in perpetuity and collectively114.

Given the recent trends in the world market, where consumers, especially in the

developed world, have become more particular about the quality and authenticity of the products

they buy, geographical indications (GIS) are increasingly being used to secure niche markets 115,.

In line with its obligations under the TRIPS Agreement, India has put in place a sui generis

system of GI protection by way of enacting a legislation dealing exclusively with GIS116, namely

'The Geographical Indications of Goods (Registration & Protection) Act, 1999' (GI Act)117.

113. See e.g., Anaya, S.J., Indigenous Peoples in International Law, Oxford: Oxford University Press, 1996, p. 105, indigenous people share a “deeply felt spiritual and emotional nexus with the earth and its fruits,” and depend upon to “secure land and natural resource base to ensure the economic viability of their communities”.

114. Rangnekar, Dwijen, ''The Socio-Economics of Geographical Indications: a Review of Empirical Evidence from Europe", Issue Paper No. 8, UNCTADICTSD Project on IPRs and Sustainable Development, (May 2004).

115. See also Communication from India, IP/C/W /196, 2000, para. 3; IP/C/W /247! Rev.! 2001, para. 20-21; IP/C/W/353, (2002).

116. Das, Kasturi, "Protection of India's Geographical Indications: An Overview of the Indian Legislation and the TRIPS Scenario", Indian Journal of International Law , 46, (2006), pp 39-73.

117. Addor, Felix and Grazioli, Alexandra, "Geographical Indications beyond Wines and Spirits: a Roadmap for a Better Protection for Geographical Indications in the WTO TRIPS Agreement", Journal of World Intellectual Property , 5: (2002), p.874.

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According to some, Article 22 of TRIPS is not good enough. It is simply a law against

unfair trade practices and for consumer protection118 and is not really for IPR protection. In other

words, an Aranmula mirror (registered GI in India since 19/05/2005) could be turned out from

the US, thus allowing an American producer to free ride on the reputation and market goodwill

created by Keralite artisans over two centuries119. The two-tiered protection of GI has been a

source of continuing conflict between Europe and the developing world120.

This difference in the Indian legislation is believed to facilitate the recognition of skilled

labour in handicrafts products such as Kanjeevaram sarees and Kohlapuri chappals121. Over

hundred GIs of Indian origin have already been registered with the GI Registry.

Though, studies in developed countries witness to the fact that GIs do have the potential

to fetch a significant increase in value-addition through premium pricing122, such empirical

evidence is however lacking in the developing world123. Nevertheless, the list of GI applications

in India is growing124. According to a CIPR Report125 the economic consequences of GIs for a

developing country are difficult to assess.

118. Correa Carlos. M, "Traditional Knowledge and Intellectual Property: Issues and Options surrounding the

Protection of Traditional Knowledge", Discussion Paper, QUNO, (2001). 119. Jishnu Latha. "We have our Mirrors, Silks, Jasmines? Patently absurd", Business Standard, December 12,

2008, available at http://www.bsl.co.inlindialstorypage.php? Autono-320171, (2008). 120. Srivastava Suresh, "Geographical Indications and Legal Framework in India", Economic and Political

Weekly, 40; (2003), pp 22-33. 121. Das, Kasturi, "Protection of India's 'Geographical Indications': An Overview of the Indian Legislation and the TRIPS Scenario", Indian Journal of International Law , 46, (2006), pp 39-73. 122. Fink, Carsten, and Maskus, Keith (2006), "The Debate on Geographical Indications in the WTO", in R. Newfanner (ed.) Trade, Doha, and Development: a Window into the Issues, Washington DC.: World Bank. 123. Birai, Anand "Madhubani goes Global", Delhi Times, January 2, (2006). 124. The Hindu Business Line, "Tirupati Laddu, Nagpur Orange to get Protection from Copycats", 19 December (2004). 125. Report on Integrating Intellectual Property Right and Development Policy, CIPR, London, (2002).

192

The main economic benefit of GIs would be to act as a quality mark which will play a

part in enhancing export markets and revenues. In the past, the issue of GIs126 been a subject of

transatlantic debate between the United States and the European Union127. In the negotiation

process for the TRIPS Agreement, the European Communities128 recommended comprehensive

protection for GIs through specific provisions in the Agreement129.

The United States, however, opposed such protection as the European Communities

proposed.130 As a compromise, the final outcome of the negotiations provided for different levels

of GIs protection for wines and spirits and for all other agricultural products. Differences in the

scope and nature of GIs protection continue to generate intense arguments between the European

Union and the United States in multilateral, regional and bilateral negotiations.131

Recently, however, GIs have also attracted significant attention from countries such as

India and Brazil, as well as from negotiating blocs such as the African, Caribbean and Pacific

Group of States (ACP).132 Such an approach is motivated by the desire of developing countries to

extend GIs protection to traditional knowledge (TK)-related agricultural resources from

indigenous peoples and local communities (ILCs) in their territories.

126. Peter K. Yu, Analysis of Intellectual Property Issues, The WIPO Journal, (2014), Volume 5, Issue 2. 127. Teshager W. Dagne, The Identity of Geographical Indications and Their Relation to Traditional Knowledge in Intellectual Property Law, Canada. 128. Ryan Pederson, Progress on the Implementation of the WIPO Development Agenda: Coordination, Core Development Programs and Budget Allocations. 129. Sergio Escudero, “International Protection of Geographical Indications and Developing Countries” (2001)

South Centre Trade Working Paper, No.10, p.23. 130. Christine Haight Farley, “Conflicts between US Law and International Treaties Concerning Geographical

Indications” (2000), 22, Whittier L. Rev. 73, p.75. 131. Josef Drexl, “Intellectual Property and Implementation of Recent Bilateral Trade Agreements in the EU” in Josef Drexl, Henning Grosse Ruse-Khan and Souheir Nadde-Phlix (eds), “EU Bilateral Trade Agreements and Intellectual Property: For Better or Worse?” (Heidelberg: Springer, 2014). 132. Trade Negotiations Committee, “Draft Modalities for TRIPS Related Issues: Communication from Albania,

Brazil, China, Colombia, Ecuador, the European Communities, Iceland, India, Indonesia, the Kyrgyz Republic, Liechtenstein, the Former Yugoslav Republic of Macedonia, Pakistan, Peru, Sri Lanka, Switzerland, Thailand, Turkey, the ACP Group and the African Group”, July 19, 2008, TN/C/W/52.

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4.20 Legal protection of GIs in the World Trade Organization

In the negotiation process for the TRIPS Agreement, the European Communities

recommended comprehensive protection for GIs through specific provisions in the TRIPS

Agreement.133

4.21 Geographical Indications

The term “geographical indications” is relatively new. In its ordinary use, the term refers

to signs that are deployed in connection with goods to indicate their geographical origin.134

WIPO study concludes that “there is probably no category of intellectual property law where

there exists such a variety of concepts of protection as in the field of geographical

indications.”135

133. Escudero, “International Protection of Geographical Indications and Developing Countries”, (2001), South

Centre Trade Working Paper, No.10, p.23. 134. David Vivas Eugui and Christoph Spennemann, “The Treatment of Geographical Indications in Recent

Regional and Bilateral Free Trade Agreements” in Meir Perez Pugatch (Ed.), The Intellectual Property Debate: Perspectives from Law, Economics and Political Economy (Cheltenham: Edward Elgar Publishing, 2006), p.305.

135. WIPO, Intellectual Property Handbook: Policy, Law and Use 120, (2nd ed. 2004).