Strategies for Geographical Indications Protection: Takeaways from India is a paper published in 2021 [Ananthu S Hari & Prof. (Dr.) K.D Raju, Strategies for Geographical Indications Protection: Takeaways from India. National University of Advanced Legal Studies Law Review (2021)]. The paper highlights that the Geographical Indications of Goods (Registration and Protection) Act, 1999 (GIGA) is a relatively new IP legislation, having only been enacted in late 2003. As a result, there are still areas of worry and confusion over the legislation’s execution in order to achieve the fundamental goals set forth when it was drafted. GIGA is an important legislation that goes well beyond simply meeting TRIPS responsibilities. Despite the fact that GIGA has been in effect for two decades, there is still a significant dearth of knowledge regarding the law.

In India, GI protection is not the same as it is in the EU and other developed countries. Wine and spirit protection is viewed as more crucial in the EU, whereas agricultural products and handicrafts are prioritised in India. As a result, GI protection measures must target these challenges independently. It is critical to have regional agreements among developing countries in order to properly preserve agricultural and handicraft exports. The author suggests that a similar agreement among Asian countries, akin to the EU Regulation on Geographical Indications, could be a viable option. This type of collaboration could help to bolster attempts to extend product protection.

In a developing country like India, where farmers and artisans are unable to adequately secure the GI-tagged items on their own, the government has a key role to play in terms of exporting, marketing, and infringement prevention. Since GI is regarded as “a poor man’s IPR,” government intervention is necessary to defend the collective rights and interests of GI holders. The establishment of a producer’s collective under government supervision, such as the INAO in France, may benefit the producers. In addition to the challenges of preventing infringement at the domestic level, the Government also has the extra responsibility of registering and marketing Indian products in foreign jurisdictions.

The paper concludes by putting forth the idea that enacting a comprehensive GI policy, forming a strong producer collective, and actively participating in regional agreements with GI protection measures are some of the positive initiatives India might pursue for greater GI protection. Apart from these steps, negotiating a bilateral trade agreement with the EU that focuses purely on GIs would also be undoubtedly helpful to Indian GIs. The paper can be accessed here: http://ciprnuals.in/wp-content/uploads/2021/09/III_01.pdf

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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Data exclusivity is a practice in which drug regulatory agencies prohibit the innovator company’s test data to be utilised in the registration of a generic version of that treatment. Since the marketing approval procedure is time-consuming and costly, the creators of regulatory data want exclusive periods of protection for their investments and resultant data collection. Generic producers in India, on the other hand, push for minimal protection in order to secure faster marketing approvals. The author believes that providing IP protection to clinical test data would ultimately, have a negative effect on the commercial drug market in India.

To support the argument of the author against the data exclusivity practice is, primarily, based on the detrimental impact it could have on public health. The accessibility to affordable generic drugs by the public at large remains a priority, however, this should not be accomplished at the expense of its quality and effectiveness. Moreover, generic companies usually lack the financial capabilities to undertake the entire task of conducting clinical trials and assimilating data.

In India, wages per capita income is lower in comparison to with first-world countries [1], and the unavailability of generics would inevitably result in high prices for many life-saving drugs. A prolonged delay in performing clinical studies by drug manufacturers will result in a delay of availability of such drugs at a reasonable price in the market, which is often a time-sensitive problem. This would also result in pharmaceutical giants having monopoly over such drugs. Hence, many life-saving drugs will be out of reach for individuals suffering from the deadliest diseases due to the lack of cheaper generics.

It is also noted that the clinical trial process involves ethical questions, as the proposed drugs have to be tested on animals and then on the human beings. If data exclusivity practice is adopted, then generic drug manufacturers will be compelled to undertake clinical trials for getting the marketing approval of the generic version of the same medicine. This would lead to duplicative testing and would amount to unnecessary and possible human injury associated with such process.

Therefore, if data exclusivity practice is approved, generic companies would encounter more challenges in securing marketing approvals, thereby increasing the cost of drugs available to consumers. This would negatively impact the availability of generic drugs at affordable prices in the market. Thus, the author strongly opines that the data exclusivity practice would have an adverse impact on the Indian pharmaceutical market, and should not be allowed.

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[1] World Bank, GDP Per Capita, available at https://data.worldbank.org/indicator/NY.GDP.PCAP.CD.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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The Department Related Parliamentary Standing Committee on Commerce furnished the “161st Report: Review of the Intellectual Property Rights Regime in India” on July 23, 2021. The Report reviewed the ongoing intellectual property rights (“IPR”) regime and put forth measures to improve the laws. Report features a section on geographical indications which dealt with gradual decrease in geographical indication (“GI”) registrations and recommended strategies to improve the number of GI registrations as well as the need to increase awareness regarding benefits of GI labelling of products.

The Report mentions that the number of GI registrations has been on downtrend from the year 2016-17. The reasons identified for the pendency or decline in registrations is due to the applicant’s inability to comply with legal requirements. It mentions that the office of GI Registry (quasi-judiciary authority) has taken steps to expedite the process of GI registrations which reduced the registration timeframe from 12 months to 8 or 9 months. It highlights that the procedure for registering “Authorised user” (producers of goods) should be accelerated. The Report highlights that the GI registry should periodically issue advisories including information on compliance necessities which will help GI applicants while submitting application for registration.

The Report in its recommendations mentions that the Department for Promotion of Industry and Internal Trade (“DPIIT”) and the GI Registry work in harmony in order to spread awareness about the benefits of GI tagging of products, which could be done by establishing kiosk and training centres, especially in remote areas. It was also suggested that formulation of marketing and advertising strategies specifically for GI tagged products may prove helpful in strengthening growth potential in financial terms.

The Report highlights the need for a centralised agency to investigate and analyse the quality assurance methods for each GI which would help in tackling infringements, unfair competition and fabrication of goods under GI tag. The agency will have the power and authority to make sure that the products being tagged under specific region are up to the standards which are mentioned in Geographical Indications of Goods (Registration & Protection) Act. This action will aid in prevention of economic losses incurred by authentic GI holders and will also secure the reputation of tagged products in global market sphere.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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The Department Related Parliamentary Standing Committee on Commerce (“Committee”) presented a report titled “161^st Report: Review of the Intellectual Property Rights Regime in India” (“Report”) in Rajya Sabha on 23^rd July, 2021. The Committee, headed by Shri V. Vijayasai Reddy, reviewed various Intellectual Property related statutes, practices and regulations and recommended measures to improve the current landscape relating to IPR. It included a chapter on IP-based financing and discussed how the same can be implemented in India.

The Report highlights the nature of IP assets and the pros and cons of using IP as a collateral while raising funds. The Report mentions that as opposed to tangible assets, the value of IP keeps increasing over time whereas value of tangible assets either remains stagnant or depreciates. This makes IP-based assets a valuable means for credit and finance. The government too has given credence to this system in its National IPR Policy of 2016 wherein it pushed for valuation of IP-based assets and using it as collateral. But then the lack of awareness, lack of infrastructure for valuation and the fear of inconsistency associated with valuation of IP is preventing the Indian economy from adopting this system.

The Report highlights that SARFAESI Act already includes intangible assets in its definition of property, thereby putting in place the basic foundation for the system. Therefore, better implementation and appropriate amendments can help bolster the infrastructure for IP-based financing in India. The Report features the Chinese and Singaporean models for IP-based financing as illustrations for India to adopt. In the Singaporean model the burden of credit extended to IP-owners is shared by the banks and the government. Under the Chinese model, the government extends help to financial institutions that accept IP as a collateral.

The Report has made the following recommendations:

1. Legislation needs to be put in place providing for uniform standards of IP valuation, mandatory maintaining of IP portfolio by businesses and spreading awareness about the effectiveness of IP-based assets as collateral.
2. The Government needs to indulge in discussions with and recommendations from financial institutions and other stakeholders for creating a mechanism for governing and facilitating IP-based financing in the country. A specific legislation for the same needs to be brought in place.
3. IP-based financing and transactions need to be promoted at the earliest by the government for rapid adoption of this system.    

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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As opposed to an esoteric legal notion, intellectual property should be viewed as a powerful instrument for economic progress instead. A growing number of business choices are being made based on the use of intellectual property (IP). Invention and imagination are at the heart of new goods, brands and designs that come on the market practically every day. Many of these inventions are the result of small and medium-sized companies (SMEs). However, obtaining consumer recognition and loyalty is a challenging task for these SMEs. The use of IP like Geographical Indications and Certification Mark can help minimize the marketing related challenges. The author is of the opinion that GIs are better options for businesses than Certification marks for an effective way to gain market access.

A certification mark can be obtained by establishing a standard trade mark or adopting appropriate licensing arrangements. But the rules governing the use of the certification trade mark often acts like additional burden over the administration in registration process and over the regulation. Additionally, it can be revoked by third parties if the authorized users do not meet standards and certification marks are not recognised outside of specific geographic areas.

On the other hand, Geographical Indication can also be used to describe a brand’s reputation due to its place of origin. Although like certification mark GIs also improve the reputation and value of local products but GIs also boost the local economy by supporting local businesses. And since these items have a better reputation for quality, their manufacturers, many of whom are small and medium-sized businesses, can sell them to get higher profit.

Unlike Certification Mark, a GI label guarantees the origin and particular features of a product. Also, it helps consumers to understand the quality and origin of the items they buy by providing extensive information on where the goods that carry a GI label were manufactured and how they were created. As quality control and assurance of a quality output are intrinsic features of GI in many situations it helps in developing trust between product manufacturers with consumers and getting a high return on their investment with a GI. Along with the fact that GIs provide local job opportunities and help improve region’s international reputation, it’s clear that unlike certification marks which just support producer objectives and profit, GIs not only encourage producer goals but also the well-being of a whole region’s economy. Hence, GIs can become a more beneficial source for enhanced market value by business.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP