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The blog that I wrote last week was about India’s government taking steps to ensure the protection of indigenous knowledge. This week I would like to examine how geographic indicators could be used in order to aid in the protection of indigenous knowledge systems and indigenous products. Everyone who is involved in intellectual property and patent law knows what a geographic indicator is, but for clarity’s sake I will review the concept.
A geographic indicator (herein referred to as GI), is a form of protection, which utilizes the name of a region or area where the product originates. This label helps to ensure the consumer that the product is of a certain quality, and has a reputation associated with it. In many countries the law restricts the use of GI, allowing the term to only be used if the product is created from or is a substances that comes from a specific associated area. GI is like a trademark in that it has many of the same functions. Although the two forms of protections are similar it is prohibited to register a trademark which constitutes a GI (Indication).
For example the country of France has a monopoly on the production of the wine named Champagne. Any wine that is produced outside of the Champagne region of France cannot legally be called Champagne. Although this is only the case in countries that acknowledge GI as a legitimate form of protection. In the United States there is a provision in the law that allows for the use of the name Champagne by long time producers of the sparkling wine. The same is true for Jasmine rice (Thailand), and Roquefort (France).
In 1999 the government of India passed the Geographical Indications of Goods (Registration and Protection) Act. The act has been in effect for six years, since 2003 (Geographical). The infrastructure and laws are in place for the government of India to take advantage of GI as a protective measure for the products of their traditional knowledge system. The reason why I personally feel that the use of GI to aid in the protection of indigenous knowledge and traditional medicine is that the system of GI seems to be better established than the Convention on Biodiversity. With in the TRIPS agreement there are already two well defined provisions which must be upheld by WTO member countries.
- Article 22 of the TRIPS Agreement says that all governments must provide legal opportunities in their own laws for the owner of a GI registered in that country to prevent the use of marks that mislead the public as to the geographical origin of the good. This includes prevention of use of a geographical name which although literally true “falsely represents” that the product comes from somewhere else.
- Article 23 of the TRIPS Agreement says that all governments must provide the owners of GI the right, under their laws, to prevent the use of a geographical indication identifying wines not originating in the place indicated by the geographical indication. This applies even where the public is not being misled, where there is no unfair competition and where the true origin of the good is indicated or the geographical indication is accompanied by expressions such as “kind”, “type”, “style”, “imitation” or the like. Similar protection must be given to geographical indications identifying spirits (Agreement).
By registering traditional remedies, and ayuverdic preparations as the GI property of the country of India, the country would gain much economically. Individuals outside of the country could still produce their own mixtures and remedies of a similar design, but the products produced in India by Indian businesses would be given an added assurances of quality and reputation simply due to their registration as GI.
However this is not, and should not be considered a cure-all to the problem of Indigenous property rights. If anything this is only a temporary band-aid to discourage what the Indian government sees as theft of common knowledge. There could be multiple problems with this approach as well. Many of the preparations in Ayuverdic medicine are used in India as well as surrounding countries. This means that these othe countries may try to lay claim to the GI of these remidies. Other countries in the area surrounding India have recently been putting thier own GI laws in place. Pakistan passed their own Geographical Indications of Goods (Registration and Protection) Act in 2000, and claim that India has wrongfully registered a product that originates from Pakistan as a GI belonging to thier country (Pakistan).
I feel that Geographic Indicators are something that really needs to be explored by developing nations, both as a means of protecting thier indigenous knowledge, but also in order to help them create new buisness opportunities. Entire industries could be developed around the preparation of a specific line of natural supplements, handicrafts or other goods which have been made for hundreds if not thousands of years.
Sources Cited
Agreement on Trade-Related Aspects of Intellectual Property Right (Agreement)
Geographical Indications of Goods (Registration & Protection) Act, 1999 (Geographical)
“Geographical Indication.” Wikipedia. 2009. Wikimedia. 29 Mar 2009 <http://en.wikipedia.org/wiki/Geographical_Indication>. (Indication)
“Pakistan expresses urgency to go the GI way.” Institute of International Trade 26 March 2009 29 Mar 2009 <http://iitrade.ac.in/news-archive.asp?news=377>. (Pakistan)
