How to Publish GI application- landmark directions of IPAB

Section 13 of the GI Act 1999 provides for publication of GI application. The corresponding rule is Rule 38 of GI Rules, which provides for publication in the Journal.

I have already expressed by view   that this kind of narrow and limited circulation will not serve any purpose of publication of GI in terms of the scheme of the law in respect thereof.  Till date all the GI’s has been published only in the GI Journal. Consequently the GI laws are unable to meet the legislative intentions and its objective.

In a recent judgment delivered by Intellectual Property Appellate Board (IPAB) while adjudicating in the case titled Subhash Jewellery  Vs. Payyannur Pavithra Ring Artisans & Others has set aside the registration of the GI while holding that the publication was not proper. While passing a detailed and well reasoned judgment, it has held as under:-

“The lawmakers may consider introducing a provision which requires each applicant to effect a publication akin to the Section 4 Notice in the Land Acquisition Act. The fact of the filing of the application must be published in a newspaper having good circulation in the locality and in the language of the territory, region or locality which is the geographical origin of the goods in question. We are deliberately not using the word “vernacular” since that has such a patronizing colonial flavour, whichever language it may be it is an Indian language. There must also be affixture of public notice in prominent places in the territory, region or locality as the case may be. Only then, the artisans will know that a Geographical Indication has been applied for in respect of the goods that they are creating. We are aware that “a producer” includes the person who deals in this goods or selling those goods.”

In light of above, it is confirmed that all the registered GI’s in India have not been given due publication in terms of Section 13 of the GI Act.  It is high time that the Registrar of GI considers republishing the GI’s  in consonance with the findings of the IPAB. Till date not a single GI has been published in terms of the above directions. 

STATE MONOPOLY OF GI- LEGALITY- ITS ROLE AND IMPACT

 

Section 11 of the Geographical Indications Act 1999 defines the applicant eligible for applying for registration of any GI. It states as under;-

 

“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----“.

 

Thus in law the applicant for GI registration should be an association of persons or producers or any organizations or authority representing the interest of the producers of the concerned goods.

 

The term ‘Producer’ defined in Section 2 (k) of the GI Act 1999 in nutshell means the actual producers of the goods and includes the person who processes and packages the same.

 

Thus the applicant has to be an authority in law competent to do so pursuant to the objectives of this GI Act 1999 and not earlier.

 

90% GI’s in India has been got registered either by the Central/ State Government agencies and/or it subsidiaries.

 

Internationally GI’s are owned by the associations of principle stakeholders while the concerned Government supporting their cause.

 

The careful perusal of Section 11 of the GI Act doesn’t enable the Government agencies to apply for any GI registration. In the Government organisation the producer has not role to play and nor they are the constituent of the same.

 

The proper recourse to my mind is to constitute a Non Commercial benefit based apex legal body of the producers of the product in question. The same should be empowered to protect the GI rights including its sustained protection and enforcement. In that manner the UNIDO while working at ‘Chanderi Sarees’ Cluster (MP) and in ‘Kota Doria’ cluster (Rajasthan) adopted a right approach by constituting NGO’s of the weavers and other related producers empowering them to protect their GI

 

The Registrar of GI in India while scrutinizing any of the GI applications filed by their counter part Government agencies has never raised any objection to such application thereby questioning its eligibility within the legal parameters of Section 11 of GI Act. On the other hand the other applicants are repeatedly questioned about their eligibility to apply for registration.

 

Apparently not only the Registrar of GI office at Chennai has adopted highly unfair, partial and illegal approach to scrutinize the applications filed by the Government agencies on the one hand and the applications filed by the non government agencies on the other hand.

 

Such kind of unfair and illegal practices not only render the GI a nullity but shall also convert the product into generic category over a long period of time. The impact of such arbitrary practices adopted and practiced can be seen in India as none of the GI registered by the Government agencies has been able to deliver the assured results. The principle stakeholders are not even aware by their rights under GI laws. By conduct of the State owing GI’s, the legal interest of principal stakeholders are made non existent. Not even a single State owned GI’s has been able to stop the spurious activities of the related product.

 

It is high time that the State/Government to realize its role of promoter and to empower the principal stakeholders/ beneficiaries and not to take over their valuable socio economic legal rights. The development agencies all across India are wasting valuable public money having no sanctity for the legal provisions.  Crores of Rupees are wasted in such exercise by the Government agencies merely to show and build records of their performance and generate artificial numbers.

 

The Development Consultants, Legal Experts and other linked Intellectuals with the GI’s need to join hands to critically evaluate the role played State while owning GI’s in such an illegal and arbitrary manner.

 

In case of failure, in case of failure to do so, it will a matter of time that this valuable GI Laws meant to protect the interest of true owner of Traditional Knowledge and to provide them with legal status shall become a story.