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LAWS

Application and registration of GIs are important components of any sui generis law.

Codifying the process in a law for simple matters such as an application for registration or an opposition filed against the registration of GI can have trade consequences.⁶⁵ EU Regulation 2081/92 was challenged in the WTO and part of this challenge was based on these procedural grounds.

The direct role of the state for the registration of GIs in India as an applicant is the main difference between the category of applicants for registering GIs in the EU and India.

The Indian GI Act takes into account its peculiar economic circumstances and the capacity of the stakeholders. A group of producers is generally the originator of an application for registration of a GI. This group holds property rights in the GI on behalf of all the members of the group.⁶⁶

According to Article 5 of the EU Regulation, only a group⁶⁷ was entitled to apply for registration of GIs. Similarly, a group is also entitled to do so under the current EU

65 Echols (n 33) 159.

66 Echols (n 33) 162. According to Echols, ‘some might say they also hold the geographical indication for the benefit of the community. This idea gains in significance as the reputation of the GI and local foods become elements of rural tourism and rural development.’

67 Article 5 of Regulation 510/2006 states:

‘1. Only a group shall be entitled to apply for registration.

For the purposes of this Regulation, “group” means any association, irrespective of its legal form or composition, of producers or processors working with the same agricultural product or foodstuff. Other interested parties may participate in the group. A natural or legal person may be treated as a group in accordance with the detailed rules referred to in Article 16(c).

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Regulation.⁶⁸ On the other hand, the Indian GI Act of 1999 allows any association of persons or producers or any organisation or authority established by or under any law for the time being in force that represents the interests of the producers of the concerned goods to apply for registration.⁶⁹ Accordingly, the Indian GI Act has implicitly allowed the state to register GIs directly. A producer’s association or an authority, e.g., ‘The Tea Board of India’⁷⁰ which represents the producers, can be registered as proprietors for the protection of GIs in India. That is why in India the majority of the GIs are registered, protected and promoted by the Indian Government through different organisations, such as APEDA,⁷¹ the Tea Board of India and the Spice Board of India.

An application for the registration of a GI is submitted under Article 8(1) of the QSR.

It requires the name and address of the applicant, details of specification as given in Article 7 of the Regulation and a single document setting out the main points of the specification: the name, a description of the product, including, where appropriate, specific rules concerning packaging and labelling, and a concise definition of the geographical area and a description of the link between the product and the

In the case of a name designating a trans-border geographical area or a traditional name connected to a trans-border geographical area, several groups may lodge a joint application in accordance with the detailed rules referred to in Article 16(d).’

Articles 5, 6, 7, 12 and 15 of Regulation 510/2006 provide the procedure for filing a PGI or a PDO.

68 Article 3(2) of Regulation 1511/2012, ‘“group” means any association, irrespective of its legal form, mainly composed of producers or processors working with the same product’.

69 Section 11(1) of Indian GI Act 1999:

‘Any association of persons or producers or any organization or authority established by or under any law for the time being in force representing the interest of the producers of the concerned goods, who are desirous of registering a geographical indication in relation to such goods shall apply in writing to the Registrar in such form and in such manner and accompanied by such fees as may be prescribed for the registration of the geographical indication.’

70 See Tea Board <www.tea.nic.in> accessed 20 August 2014, ‘Tea Board is a government body established by the Tea Act in 1953 to develop and implement a certification program to regulate and control all aspects of the production and sale of teas from different Indian regions, including tea from the Darjeeling region of India. The composition of the Tea Board is diverse, comprised of members representing owners of tea estates, the state governments, members of Parliament, workers’

representatives, exporters, packers and consumers.’ Tea Board of India v The Republic of Tea (n 33).

See also Echols (n 33) 107.

71 The Agriculture & Processed Food Products Export Development Authority under the APEDA Act 1986.

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geographical origin.⁷² Article 50(1) of the Regulation relates to the scrutiny of the applications. The Commission has six months to examine the application in the light of Article 49 of the Regulation. If the conditions laid down in the Regulation are met, the Commission will publish the single document in the Official Journal of the European Union (OJEU).⁷³

Any member state or third party may object to the proposed registration within three months from the date of publication in the OJEU.⁷⁴ In case ‘the Commission receives no notice of opposition or no admissible reasoned statement of opposition under Article 51, it shall adopt implementing acts, without applying the procedure referred to in Article 57(2), registering the name’.⁷⁵ There is an improvement in the time line in Regulation 1511/2012 compared to Regulation 510/2006. Under the former, the Commission had twelve months to scrutinise an application, and the opposition period during which an interested party could object to the proposed registration of the name was six months.⁷⁶

Application for registration of GIs in India is made under Section 11(1)⁷⁷ of the Indian GI Act. However, as explained above under ‘Product Specifications’, the application

72 See Regulation 1511/2012 Article 8(1).

73 Article 50(2)(a) states:

‘Where, based on the scrutiny carried out pursuant to the first subparagraph of paragraph 1, the Commission considers that the conditions laid down in this Regulation are fulfilled, it shall publish in the Official Journal of the European Union:

(a) for applications under the scheme set out in Title II, the single document and the reference to the publication of the product specification’

74 See Regulation 1511/2012, Article 51(1).

75 See ibid Article 51(2).

76 See Regulation 510/2006, Article 6 and Article 7.

77 11(1) ‘Any association of persons or producers or any organization or authority established by or under any law for the time being in force representing the interest of the producers of the concerned goods, who are desirous of registering a geographical indication in relation to such goods shall apply in writing to the Registrar in such form and in such manner and accompanied by such fees as may be prescribed for the registration of the geographical indication.’ See

<wipo.int/wipolex/en/text.jsp?file_id=128105> accessed 13 November 2013.

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has to fulfil the requirements contained in Section 11(2) of the Indian GI Act read with Section 32(1) of the Indian GI Rules.

On receipt of an application, the Indian GI law states that:

[T]he Registrar shall examine the application and the accompanying Statement of Case as required under rule 32(1) as to whether it meets the requirements of the Act and the Rules and for this purpose, he shall ordinarily constitute a Consultative Group of not more than seven representatives chaired by him from organization or authority or persons well versed in the varied intricacies of this law or field to ascertain the correctness of the particulars furnished in the Statement of Case referred to in rule 32(1) which shall ordinarily be finalised within three months from the date of constitution of the Consultative Group. Thereupon, the Registrar shall issue a Examination Report on the application to the applicant.⁷⁸

The Registrar may altogether refuse or may accept the application or may attach certain conditions on the basis of the comments given by the consultative group. Two months are given for compliance from the date of issuance of the examination report to the applicant. Upon a satisfactory reply, the application is accepted and published in the bi-monthly GI Journal. Upon advertisement, any person, for a maximum of 4 months, can oppose the application in writing. If no opposition comes or in the event of an opposition and the case is decided in favour of the applicant then the concerned GI is registered along with the authorised users and the particulars are included in the GI Register.⁷⁹

Pakistan is a developing country like India, with a weak private sector and an economy in transition. The Indian government has played an effective role since the enactment of its GI Law. Most of the GIs registered in India are state-owned and in many of them

78 Section 33 of the Indian GI Rules under Indian GI Act 1999.

79 Kasturi Das, ‘Prospects and Challenges of Geographical Indications in India’ (2010) 13 JWIP 148.

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the state has facilitated the registration in tandem with the private sector.⁸⁰ Pakistan can legislate along the lines of the Indian GI Act with regard to the provisions related to the

‘applicants’. This will enable the state to play an active role in the registration of GIs.

It will facilitate the government institutions of Pakistan, such as the Trade Development Authority of Pakistan (TDAP), the Pakistan Horticulture Development and Export Board (PHDEB), and provincial agricultural departments to play an important role in registering and promoting GIs in Pakistan.⁸¹ Further, with regard to the application and the process of opposition and subsequent advertisement or publication of the application for registration, both the EU and India have comprehensive systems.

However, the Pakistani government may seek to emulate the Indian example here because India is not part of any customs union and hence the process of registration is relatively simpler. The timeline for registration of GIs is also quicker than the EU. In this way, public institutions in Pakistan can register GIs. Registration of GIs is badly needed in Pakistan as there is not a single GI registered at this time. The role of the government is likely to result in the speedy registration of the GIs in the same way as India, and will promote trade and rural development in Pakistan.