International Protection of India's Geographical Indications with Special Reference to "Darjeeling" Tea

The issue of Geographical Indications (GIs) has been debated in India and globally at various forums like the World Trade Organization (WTO). World Intellectual Property Organization (WIPO) provides for the protection of GIs at an international level. 'Geographical Indication' refers to an indication of goods that have originated from a definite geographical territory, used for identifying an agricultural, natural or manufactured good. Examples of GIs in India are Basmati Rice, Kanchipuram Silk Sari, Tellicherry Pepper, Nilgiris Tea, Darjeeling Tea etc. In India, Protection and Registration of GIs relating to goods comes under The Geographic Indications of Goods (Registration and Protection) Act, 1999 and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) deals with GIs' protection at international levels. GIs have rapidly gained importance, and the WTO has initiated actions to legalize the registration of goods as GIs in the context of an increasing integrated international regime. Major objectives of this study are: i) To understand GIs in India through overview of GIs protection, registration and the challenges faced by GIs protected-agricultural, natural and manufactured- goods in the Indian context. ii) Effort has been made to identify the difference between GIs and Trademarks through this research. iii) An overview of few GIs registration of goods in India has been conducted to know how GIs have been protected and further scope for GI registration for more goods has been explored. iv) In the present study, efforts have also been made to find out the benefits and challenges of GI certification for various goods in the Indian context. The major challenges faced by goods applying for GI status are: Origin of the goods for identifying geographic territory; Registration of GIs; Monitoring and controlling specified processes, procedure and quality of GI protected goods; Protection of GIs from infringement; and enforcement of intellectual property rights.

The issue of Geographical Indications (GIs) has been debated in India and globally at various forums like the World Trade Organization (WTO). World Intellectual Property Organization (WIPO) provides for the protection of GIs at an international level. 'Geographical Indication' refers to an indication of goods that have originated from a definite geographical territory, used for identifying an agricultural, natural or manufactured good. Examples of GIs in India are Basmati Rice, Kanchipuram Silk Sari, Tellicherry Pepper, Nilgiris Tea, Darjeeling Tea etc. In India, Protection and Registration of GIs relating to goods comes under The Geographic Indications of Goods (Registration and Protection) Act, 1999 and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) deals with GIs' protection at international levels. GIs have rapidly gained importance, and the WTO has initiated actions to legalize the registration of goods as GIs in the context of an increasing integrated international regime. Major objectives of this study are: i) To understand GIs in India through overview of GIs protection, registration and the challenges faced by GIs protected-agricultural, natural and manufactured- goods in the Indian context. ii) Effort has been made to identify the difference between GIs and Trademarks through this research. iii) An overview of few GIs registration of goods in India has been conducted to know how GIs have been protected and further scope for GI registration for more goods has been explored. iv) In the present study, efforts have also been made to find out the benefits and challenges of GI certification for various goods in the Indian context. The major challenges faced by goods applying for GI status are: Origin of the goods for identifying geographic territory; Registration of GIs; Monitoring and controlling specified processes, procedure and quality of GI protected goods; Protection of GIs from infringement; and enforcement of intellectual property rights.

This chapter looks at the international intellectual property regimes for the protection of trademarks and geographical indications (GIs), both of which play a role in food labelling. It is important for those involved in the marketing of food that they have to deal with harmonised trademark and GIs rules, so that they do not require a multiplicity of labels to comply with a multiplicity of rules. As this chapter explains a high level of harmonisation is achieved by the World Trade Organization (WTO) Agreement on Trade Related Aspects of Intellectual property Rights (TRIPS). As compliance with TRIPS is an obligation of all WTO members, this chapter focuses on the trademark and GIs provisions of TRIPS, while mentioning the other international instruments which deal with these subjects.

Hope as well as fear was running wild when in 1995 the multilateral trading system incorporated the protection of intellectual property (IP) rights. As one author put it, “the [IP] component of the WTO [World Trade Organization] Agreement represented a revolution in international intellectual property law.” This article provides a reality check 15 years after the fact with a particular focus on how the WTO performed in terms of settling IP disputes under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). It compares conventional expectations associated with the creation of TRIPS and WTO dispute settlement to (i) the number and types of TRIPS disputes actually filed and decided, (ii) institutional and substantive decisions and interpretations reached by WTO panels and the Appellate Body in their application of the TRIPS agreement and, finally, (iii) the status of implementation of adverse WTO rulings under TRIPS. The article offers a number of hypotheses that may explain these descriptive results centered on (i) the rather unique features of WTO dispute settlement, (ii) the TRIPS Agreement itself as compared to other trade agreements and (iii) an escalating cycle of IP-skepticism, due in no small part to the hard-line position taken by many IP industries themselves, and culminating in the 2001 Doha Declaration on TRIPS and Public Health which confirmed and slightly expanded TRIPS flexibilities in the context of the access to essential medicines debate. The core message of this article is that based on 15 years of operation both the hopes and fears traditionally linked to TRIPS and WTO dispute settlement, not just in 1995 but to this day, were and continue to be largely exaggerated. TRIPS as conventionally portrayed by many is in this sense “the dog that barked but did not bite”. A caveat to this core message is, however, that it says something about the role and impact of formal dispute settlement under TRIPS, less about the broader changes brought about by the TRIPS agreement, in particular, sweeping (and often costly) legislative amendments in many developing countries, monitoring through the TRIPS Council and bargaining “in the shadow” of TRIPS both to weaken and to strengthen global IP protection (be it in the Doha Declaration on TRIPS and Public Health, certain preferential trade agreements, WIPO or the WHO).

The desperate need for a vast part of the global population to access better medicines in more reliable ways is a persistent social concern. Since the mid-1990s, it has also evolved into one of the most cynical and disheartening aspects of international politics, as we have seen the interests of a few conflict with the needs of the many. The conflicts between the rise of global intellectual property (IP) rights and the deployment of cheap medication for the poor have been extensively discussed since shortly after the adoption of the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement in 1995. A plethora of academic writings on the topic has been produced and the media have extensively commented (sometimes accurately, sometimes less so) on a subject that has now become familiar to many. However, since starting the research leading to this book in 2002, I have remained convinced that there are too many dimensions of the debate that have been left unexplored. Whilst this book does not claim by any means to provide an exhaustive story of TRIPS, it aims to unpack some of these unexplored aspects, but also to bring together bodies of analyses and questions that have not been confronted with each other in this context. I do this by bringing together qualitative data collected in two states of sub-Saharan Africa (Djibouti and Ghana) and the conceptual insights of actor-network theory (ANT) to propose a socio-legal exploration of the links between IP and access to medicines. I explore TRIPS as a multiple actor, flowing along networks that bring it from the World Trade Organization (WTO) to Djibouti and Ghana, through offices, into drugs, encountering AIDS, malaria, patients and activists on its way. I explore pharmaceutical patents as part of TRIPS, but also as part of materials, including medicines, and as part of the daily lives and practices of many other human and non-human actors, and question the co-constitutional roles of diseases and regulatory politics in the context of IP. I am primarily interested in the ‘small’ and in localized connections, while understanding those as always entangled in events and linkages happening elsewhere. In this process, ANT provides a useful toolbox to analyse the multidimensional interactions between the wide range of actors that is relevant to TRIPS. I have chosen to use ANT in an open and flexible way, and hope not to have betrayed any of its fundamental claims in doing so. Instead, I hope that this book provides an opportunity to question the possibilities and limitations of engaging with ANT in socio-legal studies, and in the study of global legal instruments. Reciprocally, using ANT to explore a particular set of legal tools enables me to question the processes of ordering and production that surround their deployment into new networks, offering an analysis of the law that opens questions beyond these particular case studies.

Patently robbing the poor to serve the rich

The dispute European Communities—Protection of trademarks and geographical indications for agricultural products and foodstuffs, which opposes the European Union with the United States and Australia, has been raised by the European regulation concerning the protection of geographical indications (GIs). This dispute has two important issues. First, the Panel has demonstrated that the European Regulation does not comply with national treatment promulgated by the Agreement on Trade‐Related Aspects of Intellectual Property Rights and the General Agreement on Tariffs and Trade 1994. Second, the Panel affirmed the possibility of some coexistence between GIs and identical prior trademarks. This article considers these issues and describes the positions of the parties at the end of the dispute over protection of GIs. The first part discusses the Panel's conclusions on national treatment and the coexistence of GIs and prior trademarks. The second part provides an analysis of the relationship between national treatment and international harmonization of the rules on the protection of GIs. This shows that if the Panel findings do not annihilate the European system of protection of GIs, the United States will find it advantageous to free ride and resist any move towards the European system of protection.

The principle of territoriality is one of the fundamental principles in Intellectual Property Rights (IPR) which is regulated in Trade Related Aspects of Intellectual Property Rights (TRIPS). This principle gives authority to the state to regulate IPR according to the circumstances and needs of the state. This territorial principle allows a country to design intellectual property laws in a way that is consistent with its goals. This study uses a normative juridical method with a statutory and comparative law approach. Regulations regarding territorial principles in the regulation of Geographical Indications (GI) are contained in Article 22 (1) TRIPs, where TRIPs are the basis for the rules (minimum standards) for regulating GI protection. In addition, GI protection is contained in the Lisbon Agreement for the Protection of Appeals of Origin and their International Registration 1958 and in the Madrid Protocol. Indonesia regulates GI protection in Law Number 20 of 2016 concerning Trademarks and Geographical Indications and in Government Regulation Number 12 of 2019 concerning Geographical Indications. Indonesia must regulate GI well because it has great potential to increase people's income. Apart from that, Indonesia must also register Indonesian GIs in the international registration room, so that there is no misuse in their use.

THE COMMON COMMERCIAL POLICY Since a few years, the European Union (EU) has taken several initiatives to promote and protect innovation. According to the European Commission, innovation is the prerequisite for the competitiveness of the European industries and businesses and, furthermore, for growth and employment. Thus, innovation has been given a central place in the Lisbon strategy which influences national and European policies and actions. In this context, intellectual property rights (IPRs) enforcement has become a priority in fighting counterfeiting and piracy which have increased in a worrisome way. The achievement of the single market is the first legal basis to organize a uniform system of IPRs by creating titles that coexist with national ones. But, in the context of globalization, the EU does also deal with external trade policy as part of the external aspects of the Lisbon strategy. The interface between external trade and IPRs appeared in 1986 in the framework of the Uruguay Round. But, at that time, the European Community had no competence on this subject. The Amsterdam and Nice treaties tried to give it the competence in the commercial aspects of intellectual property. Such initiative resulted in a lack of visibility, as its competence was shared with the Member States. As the Lisbon treaty has clarified its competences, the European Union has now an exclusive competence in the commercial aspects of intellectual property and the Council can act by a qualified majority to conclude agreements on this subject. Without waiting the entry into force of the Lisbon treaty, the European Commission has decided that IPRs were one of the new growth sectors that the EU would include in the foundations of its common commercial policy. The EU maintains its commitment to multilateralism and is involved in the Doha Round which tries to improve the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement in line with development priorities. In that context, the UE has a unique status of full member next to its member states and tries to get a better protection of geographical indications. But, as the negotiations face strong oppositions between the parties on the agricultural subject, the European Commission has decided, through free trade agreements (FTAs) to get stronger and stricter provisions on IPRs. By concluding FTAs, the EU seeks to obtain extended engagements than in the multilateral context. This is also a way for the UE to export its own standards of IPRs protection. Bilateralism is considered a complement to multilateralism and the European Commission wants to use the same tools as its “competitors”, such as the United States. On the basis of several criterias, it has identified countries which could become its trading partners through FTAs. The study of the recent agreements between the EU and the Cariforum group and with South Korea reveal deeper engagements from the EU’s trading partners to provide an IP protection similar to the one in the EU. Furthermore, since 2007, negotiations are engaged with ASEAN and India which have qualified as priorities for the conclusion of new generations of FTAs. The European Commission seems to be all the more determined to improve through bilateral cooperation the enforcement of IPRs as the “Europe 2020” strategy maintains the priority on innovation and the end of the Doha Round is not predictable in a middle term. But this position may not be conformed to the EU’s international objectives.

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), in its design and implementation procedures, does not reflect a human rights approach. There is an ever-growing community of critical voices, however, requiring that human rights should serve as a corrective to intellectual property rights and their implementation in the context of TRIPS. The crucial question is, of course, how this goal may be accomplished. Under TRIPS, human rights constitute non-essential exceptions to intellectual property rights. However, obligations under international human rights law (IHRL) can only be a relevant consideration if either the World Trade Organisation (WTO) itself or its members, when acting as such—or both—are bound by IHRL. If this should be the case, the question as to the exact relationship between the norms under TRIPS and those of IHRL will arise. Is IHRL hierarchically superior to WTO law? This chapter will show that both the WTO and its members, as such, are the bearers of obligations under IHRL and that, in many instances, norms of IHRL will have to be held to rank above “international trade law”. This should have consequences in particular for the way the WTO enforces TRIPS within its dispute settlement system. The rules of treaty interpretation under customary international law (as codified in Article 31 of the Vienna Convention on the Law of Treaties of 1969) offer substantial scope for human rights considerations to play a role in WTO dispute settlement. Attempts at establishing conformity between TRIPS and IHRL should, moreover, take account of extraterritorial obligations flowing from the various UN human rights treaties, specifically also the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966, and their implications for state conduct. States parties to the ICESCR are not only obliged to observe Covenant provisions where the effects of any of their actions are confined to the domestic level, but also if their conduct, for example within the WTO, affects the economic, social and cultural rights (ESCR) of populations in other countries. The Committee on Economic, Social and Cultural Rights (CESCR), the body of independent experts supervising implementation of the ICESCR—which so far has proven highly capable of advancing the cause of ESCR globally—should adopt a more proactive approach in defining extraterritorial obligations under the ICESCR, also in relation to WTO law, and should further be bold enough to adopt a clear stance in cases of conflict between TRIPS and IHRL.

The protection of intellectual property (IP) rights, given international legal effect through the World Trade Organization (WTO) Trade-Related Aspects of IP Rights (TRIPS) Agreement, has long been a contentious issue. In recent years, the long-standing debate on IP rights as a barrier to the access of affordable medicines has been heightened by the global vaccine inequity evidenced during the COVID-19 pandemic. The TRIPS Agreement contains a number of flexibilities that WTO members can exploit in order to accommodate their policy needs. Among these is the mechanism of compulsory licensing, whereby patent licenses may be granted without consent of the patent holder in certain circumstances. TRIPS Article 31bis created a special mechanism for compulsory licenses specifically for the export of pharmaceutical products to countries with insufficient manufacturing capacity. We analyzed domestic patent legislation for 195 countries (193 UN members and two observers) and three customs territories. We analyzed patent legislation for provisions on compulsory licenses, including those defined in Article 31bis of the TRIPS Agreement. We identified 11 countries with no patent legislation. Of the 187 countries with domestic or regional patent laws, 176 (94.1%) had provisions on compulsory licensing and 72 (38.5%) had provisions implementing TRIPS Article 31bis. The results of this study have highlighted the gap in the implementation of TRIPS flexibilities in countries' national patent legislation, especially in least-developed countries. Although it will not fully solve patent barriers to the access of medicines, implementation of compulsory licensing (and specifically those for the import and export of pharmaceutical products) will provide governments with another tool to safeguard their population's public health. Further discussions are needed to determine whether the WTO can provide effective responses to future pandemics or global crises.

To augment the global production and distribution of Covid-19 medical products such as vaccines, drugs, and other therapeutics, countries are negotiating temporarily waiving certain provisions of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement at the World Trade Organization (WTO). Depending on the conditions that will govern the waiver, countries will amend their domestic intellectual property (IP) laws to effectively implement the waiver. While the waiver will provide immunity to IP-related regulatory measures from legal claims at the WTO, multinational pharmaceutical companies can use the investor-State dispute settlement (ISDS) mechanism under bilateral investment treaties (BITs) to challenge such IP-related regulatory measures. In case of such a challenge to IP-related regulatory measures, will the host State be able to defend these measures? The article answers this question by dividing the investment treaty practice into those BITs that contain carve-out for IP and those that don’t. The former set of treaties provides greater regulatory autonomy to implement the TRIPS waiver. However, given the fragmented and incoherent nature of the ISDS mechanism, the outcome will depend on arbitral discretion. TRIPS waiver, WTO, bilateral investment treaties, intellectual property, investor-state dispute settlement

BackgroundIndia is one of the largest producers of generic medicines in the world. Yet, low cost generic medicines remain inaccessible and unaffordable to many Indians. The 2011 World Medicine Situation...

Geographical Indication (GI) highlights the origin and excellence of products unique to various locations. In 1999, India introduced GI to comply with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. GI in India can be divided into three basic categories: agri-food, natural commodities, handicrafts, and/or industrial items. According to reports, more than 4000 products in India are eligible for registration under the GI Act. However, the present number of GI registrations, especially in the agricultural and food sectors, is much lower than its potential. India's National Intellectual Property Rights Policy actively encourages GI protection and progress through supportive agencies. These institutions assist GI producers in defining and upholding acceptable quality standards, thereby enhancing marketability. Even though products labeled with GI tags adhere to superior quality standards, geographical indications (GIs) encounter various challenges in India. Nonetheless, there are potential solutions to address these issues. The challenges include the lack of awareness among producers and farmers regarding the registration process, post-GI schemes, and subsidies. Moreover, there is insufficient infrastructure resources to promote and market GI-tagged products. Additionally, GI-tagged products have a limited presence in domestic and international markets due to ineffective marketing strategies, the absence of postproduction control, and unethical market practices. A robust enforcement mechanism is required in both domestic and export markets. This paper discusses the challenges faced by GI agricultural produce and proposes a way forward for GI crops.

The protection of geographical indications (GIs) has, over the years, emerged as one of the most contentious intellectual property right issues in the realm of the World Trade Organization (WTO) Agreement on Trade–Related Aspects of Intellectual Property Rights (TRIPs). The hierarchical nature of protection for GIs under TRIPs fails to provide full protection for GIs other than those designating wines and spirits. Aware of this inadequacy, India, along with other like–minded countries, has been pressing for the “extension” of the higher level of protection, currently granted only to GIs of wines and spirits, to all GIs. However, the issue has reached a stalemate at the WTO for quite some time now. Against this backdrop, this article provides a cogent account of a range of issues in the context of GI protection, with a particular focus on India.