Legal Protection of Traditional Knowledge in India with Special Reference to Trade Mark: A Case Study of Mohan Meakin vs. Scotch Whisky and Scotch Whisky Association vs. Pravara Sahakar Karkhana

Abstract

The present research paper will analyze the gap created due to overlap of legislative provisions. The legal protection of Geographical Indications in India with special reference to traditional knowledge is one of the core issues in the contemporary intellectual property rights regime. Traditional knowledge though is protected under Geographical Indication is inadequate to reward and recognize the original community whose inherited long experienced and practiced traditional knowledge. In this paper the author would like to highlight the issues relating to the legal protection of Geographical Indications in India with special reference to Traditional Knowledge. The core issue analyzed in this paper is whether the traditional knowledge is protected under Geographical Indication is adequate to reward and recognize the original community who’s inherited long experienced and practiced traditional knowledge.The recognition and the protection of the traditional knowledge can be ensured by two ways, institutionalization and internalization. Institutionalization would mean the WIPO, WTO, etc.It is to be taken into consideration that the legal regime that would be applicable for the recognition and protection of the traditional knowledge would be in three tiers. One would be the local, then in federal system State, then national and then at international level. Just by considering harmonization of the legal systems at international levels would not be sufficient unless and until the trickledown effect of this harmonization is ensured. The paper also aims at ensuring the dilemma of consumer’s confusion between Trade Mark and Geographical Indications with special reference to traditional knowledge. Specifically issues if already granted trade mark is misleading the consumers and creating confusion for geographical Indications protecting Traditional knowledge. Another Issue relating to violation of Geographical Indications with special reference to traditional knowledge will be violation of legal rights of ethnic group of people of a particular region. Finally, the author has concluded there is a need of concrete protection of traditional knowledge under Geographical Indications. According to TRIPS provisions, Article 24 is for additional protection of spirit and wine and Article 23 of the TRIPS says that if there is confusion among the consumers regarding geographical Indications and Trade Mark which will prevail. Author also suggested that there should be a link between the existing legislation and its implementation in real life situation.