Whenever there arises a conflict between trademarks and geographical indications, then the Geographical Indication of Goods (Registration and Protection) Act, 1999 comes to the rescue. Section 26(1) of the Act provides for trademarks which are acquired either before the commencement of this Act or before the date for filing an application for registration in “good faith” then the provisions of this Act shall not prejudice the validity of registration of such trademarks under the law relating to trademarks or on the ground that such trademark is either identical or similar to such geographical indication
Thus, this Act shall not apply to geographical indications concerning that classes of goods which on or before 1st January 1995 became a common name of goods in India. This Act enables a person to use his name or the name of his predecessor in business except where such name likely to confuse or mislead the public, thereby protecting the rights of any person. This Act also provides that no action concerning registration of a trademark shall be taken after 5 years from the date of its use or registration that infringes geographical indications registered under this Act and has known to the registered proprietor or the authorized user.
The provision corresponds to the provision of the TRIPS Agreement. However, a restriction might give rise to difficulties practically as the application for registration or its use must have been done in good faith.
Section 25 of the Act provides that the Registrar may refuse or invalidate the registration of a trademark consisting of geographical indication that may lead to expropriation of a public property leading to confusion in the market. The registrar may take such action either suo moto or at the request of an interested party.
The rationale for protecting the geographical indication: Geographical indications have features that correspond to the needs of local communities and farmers. Geographical indications:
Additionally, geographical indications are business interests existing solely to promote the goods of a particular area or region. Geographical indications are valuable commercial assets but exposed to misappropriation or forgery. However, they can be treated as intellectual property that is eligible for claiming relief from infringement and unfair competition.
The conflict between a trademark and geographical indication has been a prominent one, they share the same principles common to all intellectual property rights but they have their specialties:
A geographical indication is a generic right that is available to all the traders of a particular region for the goods that emanate from that region whereas a trademark is a sign that distinguishes the goods of a particular trader from that of its competitors. The holders of geographical indication have the exclusive right can be used only by manufacturers of that specific area but those who measure up to the standard may not be the sole legal user but a trademark is an exclusive right and this right can be exercised only by those who have been granted this right to use. A geographical indication is not transferrable while a trademark is transferrable.
Unlike a trademark, a geographical indication is also permanent and will not fade away with time. It will not become invalid even if some of the manufacturers stop using it. Thus, it has a lasting value.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being. Further, despite all efforts that have been made to ensure the accuracy and correctness of the information published, White Code Legal and Tax shall not be responsible for any errors caused due to human error or otherwise.
