Champagne, Puma, Darjeeling Tea and Ford are known all over the world. A common man would recognize the given names as famous brands. On looking closely it can be realized that the above mentioned names do not belong to the same category.
Champagne and Darjeeling Tea can be categorized under Geographical Indicators, while Puma and Ford are Trademarks. There has always been confusion in the minds of people when it has come down to Trademarks and GIs. To a common man, a trademark and a GI are the identity of the good.
In order to explain this better, it is best to define a trademark as well as a GI.
Section 2(1)(e) of the Geographical Indications of Goods (Registration and Protection) Act, 1999 states that:
“geographical indication”, in relation to goods, means an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be.
Trade mark is defined under Section 2(i) (zb) of the Indian Trademarks Act 1999 as “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colors.”
However definitions can deceive and sometimes names do get mixed up. Trademarks have used names of places for increasing the reputation of the mark, or to advertise it. This has caused a lot of confusion in the minds of the lay man. E.g. Darjeeling Lounge of the ITC.
TRADEMARKS AND GEOGRAPHICAL INDICATIONS CONTRASTED
Trademark, registered by a single entity offers exclusive rights in this regard to that entity alone, but can be assigned or licensed to any other manufacturer operating anywhere in the world. GI on the other hand, is a sort of “collective protection” granted to a group of manufacturers belonging to a particular location, where the product first originated. Instead of granting any single holder the right to benefit from the protection (as is in the case of a trademark), it extends to a specific region/territory/location where all individuals (manufacturers/producers) falling under this periphery can benefit from the same. And since it is common property, it cannot be made subject to assignment, licence, transmission, pledge, mortgage, etc.
GI brings into its fold a special kind of indication known as “appellations of origins” used on products that that result exclusively or essentially due to the geographical environment in which they are produced. It certainly makes for a stronger case than simply GI alone. Example being, wines originating in France and stated as AOC Alsace = Appellation d’Origine Controlée Alsace.
GI, unlike a trademark, cannot be sold or de-localized. All producers/manufacturers are allowed to use the same geographical indication for a particular product; however, only that producer is allowed to use his trademark in respect of the product, if the same has been registered. An example being, all honey farmers in the Cameroon Mountain area can use the GI “Mountain” for the same, and if any of the producers has registered the trademark “XTRA” for its honey, only that entity will be permitted to call its produce “XTRA” Mountain Honey.
A trademark can be anything, ranging from a letter to a word to a number, device, hologram, sound or smell, but a GI can only consist of a geographical name or a symbol related to places.
A trademark is purely the product of human creativity and intelligence which makes it unique and distinctive in the minds of the consumers. A GI, on the other hand, is a product of numerous factors such as topography, human efforts, climate and other factors and is independent of human creativity in general. Most importantly, being linked to a certain geographical origin, it has derived characteristics which is not the case with trademarks.
However, a common feature between trademarks and GIs is that they both indicate the source of the products and hence, place names tend to get used as trademarks, as is the case of Tanjavur Masala Dosa and Darjeeling café. As mindful consumers, though, it is important to understand that not all cases of usage of geographical names constitute a GI. Going by trademark rules, such names are usually not granted trademark protection; however, in certain cases (where section 9(1) (c) of the Trademarks Act 1999 applies), trademark protection is granted where the mark has acquired distinctiveness over a period of time.
Alternatively, the Trademark Registry uses the population benchmark to ascertain whether a particular geographical location merits being tagged as a GI with respect to goods produced in the said region/territory. Where the population of a place is less than 5000, it is assumed that the possibility of traders in such areas intending to use the name of the place for their goods is so remote that there arises no reasonable likelihood of the mark being used in trade as a Geographical Indicator, as per the Trademark manual.
The popular case of TEA BOARD, INDIA vs ITC LIMITED, where the Tea Board alleged ITC for naming their lounge as the Darjeeling Lounge, which as stated by the plaintiff was equal to infringing the GI Darjeeling Tea. The court held in this case that the word Darjeeling has been in use for trade purposes over a long period of time, and also obtaining a trademark for a lounge under the name Darjeeling would not create a situation where the consumer would mistake the lounge to have any relations with the famed GI. The court also held in the Bikanerwala vs New Bikanerwala case, that using a geographical name for a trademark would not be accepted unless the trademark has shown acquired distinctiveness over a long period of time. These two cases as quoted above can be quoted as examples of situations where a geographical name has been trademarked.
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