Geographical Indication (GI) is an important intellectual property right used in the realm of trade to highlight the origin of product which is exclusive to the territory or region where it is produced. Geographical Indications (GIs) are used to identify goods as originating from a particular region as a signifier of quality. Thus, the geography, quality, and reputation of the goods are inextricably interlinked. This enables the producer to convey the credentials of their products to the consumers in the context of information asymmetry.
A well protected GI, when pro-actively used, can be an effective marketing tool as it conveys to the consumers of particular goods and services a certified level of quality, reputation and special characteristics of those goods and services. If not accorded protection, any person can use any geographical indication to any goods or services which may not be at par with the standards of the original goods and services and can cause confusion among the consumers and deceive them. Lack of awareness among the stakeholders of GIs, non -existence of quality control mechanisms are the reasons for the failure in achieving the objectives. Moreover, the Act which is formulated at par with the trademarks law tends to be more trader-centric than producer-centric.
GI CHALLENGES IN INDIA
India may have unknowingly made it more difficult for its producers to get GI protection for their agricultural products. Section 9 of the Act, which prohibits registration of GIs which are determined to be generic names or indications of goods, says that an indication becomes generic when it goes back to the public domain and is not or has ceased to be protected in their country of origin, or which has fallen into disuse in that country.
It should be noted that TRIPS leaves it exclusively to the discretion of the country of origin to decide whether a particular geographical name has become generic or not. Thus, it is the governments/courts of WTO members that will decide whether or not a particular GI has become generic or needs to be protected. It is submitted that India ought to have kept the scope of genericide as narrow as possible, i.e., it should have allowed its courts to determine which term is generic and which is not, based only on the situation in India (the country of origin) and not based on the status in the areas of consumption. The more areas and situations we consider, the more likely that the term is generic, especially considering the drive with which industries in the 'New World' are attempting to exploit GIs.
GLOBAL GI CHALLENGE
In the recent times, the IPR protection has taken center stage. Developed countries which possess most intellectual properties in terms of high knowledge-based technologies, seek to protect their self-interest by the IPR conventions and often complain about the inadequacy of IPR protection in developing countries and accuse them of IP piracy. Developed countries, in particular those which possess GI products, have enacted laws to protect their genetic resources. Thailand with its sui generis GI protection system hopes to mitigate the problem of exploiting origin-based names. The Thai GI Act was enacted not only due to the requirements of the multilateral trading framework but also due to biopiracy related to its widely known Thai jasmine rice. The biopiracy issue was seen as the main driving force accelerating the process for enacting the GI law.
However, increased trade liberalization through bilateral FTAs and RTAs with economies such as the United States and the attempt to protect its national "assets" by obtaining a patent for the rice genes in the USPTO have created a situation that has started to challenge GI protection in Thailand. This is due to the limited protection period for patents registered in the United States (only up to 20 years). Furthermore, patenting life forms was never a position of Thailand at the multilateral trade negotiations on patent protection.
Suggestions on how to solve such problems do exist, such as opening negotiations that go much further than the existing request of extending GI protection, or upgrading its national sui generis system for GI protection by adding protection on genetic resources of GI plants. However, there is a cost to such suggestions and the expected outcome is unsure. Raising the issue of automatic protection on genetic resources of GI plants within the scope of GI protection is much more challenging, while there is criticism of the sui generis system of GI protection by opponents in a series of bilateral FTAs and RTAs. Questions like whether the country would be better off by using its resources on other facets of development that are more likely to yield sustainable outcomes. While creating consumer awareness about GIs, for example, is generally recommendable, it must also be considered that GI promotion is expensive and sustainable benefits are not guaranteed. Nevertheless, given the social, cultural and economic importance of GIs for Thailand, it is necessary and worth trying to seek win-win solutions which are of benefit to both sides, the opponents and proponents of GI protection. Many Thai GIs are agricultural in nature and involve all kinds of actors from poor rural households to GI exporters. Losing "GI assets" due to inadequate protection might have a negative impact on many of the million poor in the rural areas.
CONCLUSION
Geographical Indicator in the international arena is still to be achieved, primarily due to the fact that Article 23 of TRIPS gives good protection to Wines and Spirits, but currently not for other products. It is there important for India to seek extension of GI protection to other products along with Wines and Spirits by amending Article 23 of the TRIPS.
A registered G.I. tag prohibits the holder from using the registered mark of G.I. or its name in any product which is similar to or misleading the registered product. Since the adoption of the TRIPS Agreement, there has been increased awareness of the need for adequate protection of geographic signals for all products. In addition, the negotiations by the World Trade Organization (WTO) in the field of industrial and agricultural products demonstrate the increasing importance of increasing the level of conservation of geographical signals for wines and spirits to all products. Nations have to understand the fact that protection for GIs is best provided under national laws because it is not the provisions of the treaty but the actual national laws that provide protection in relation to GIs. Such protection is an invaluable marketing tool and an added value for exports because it increases the likelihood of market access for such goods. The GI tag is an essential component for creating and maintaining abstracts and originality of the product of certain essentials and characteristics. India is not far behind to legally pursue this aspect of intellectual property.
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