New Delhi: Kolhapuri Chappals, Banarasi Sarees, Madhubani Paintings, Darjeeling Tea, and Malihabad Mangoes–all of these products have one thing in common—their Geographical Indication—a tag which indicates that these goods are actually recognised and identified as being produced or manufactured in a particular region, which in turn makes them all the more valuable for customers.
Essentially, GIs are used to indicate the “regional origin” of goods, provided those goods derive their particular characteristics from their geographic origin. Such goods can be either man-made or natural. For instance, Feni, a traditional spirit made in Goa, and is derived from either cashew apples or coconut sap, is an example of a man-made GI, whereas a Dassehri aam (mango), is an illustration of a natural GI, which originates from Uttar Pradesh.
In India, such geographical indications have been defined under Section 2(1)(e) of the Geographical Indications of Goods (Registration and Protection) Act, 1999, which, in a nutshell says that particular goods are manufactured or originate from a particular territory, country, region or locality and possess some special quality, reputation or characteristics, which are essentially attributable to its geographical origin.
This is also why certain goods are highly priced due to their origin in specific regions, such as Pashmina shawls, or Champagne, which originates from the Champagne region of France.
In this backdrop, a legal battle erupted between the Republics of Chile and Peru over an alcoholic beverage called Pisco, which is a type of liquor derived from fermented grapes, by distilling them according to traditional methods.
By way of a 47-page ruling, Justice Mini Pushkarna noted Monday that since the alcoholic beverage, Pisco, from Chile is also recognised and identified worldwide, just like the Pisco that originates from its neighbouring country, Peru, the latter could not claim exclusivity over its GI tag, as that would be detrimental to the legal and legitimate commercial interests of Pisco producers in Chile. It could also deceive consumers, and cause confusion, the court noted.
In doing so, the court set aside a 2018 order passed by the Intellectual Property Appellate Board (IPAB), a quasi-judicial body that exercises jurisdiction over trademarks, patents and geographical indications, where it had allowed Peru’s application for claiming the GI tag over the alcoholic beverage.
Before this 2018 order, the Assistant Registrar of Trade Marks & GI, in 2009, had granted Peru the GI tag, which specifically said “Peruvian Pisco”. But, this was later set aside by the IPAB, after a span of nine years, while giving the exclusive GI tag to Peru, for use of the term Pisco.
Challenging this, the Asociación de Productores de Pisco (Chile) approached the Delhi High Court. It argued that Peruvian Pisco should specify that it is Peruvian, while the Chilean one should specify that it hails from Chile. While the Chileans did not dispute the fact that Pisco can also originate from its neighbouring country Peru, they argued that the Pisco liquor that emanates from Chile is different from the one that originates in Peru. The differences lie in the types of grapes used, the process used to make them, and so on, they argued.
Speaking to ThePrint, advocate Shwetasree Majumder, who represented the Chilean association said, “A shared history cannot be monopolised. The solution in this case is a good answer to recurrent complaints about one country ‘monopolising’ a shared historical product. Peru and Chile have a shared history in the manufacture of a beverage
called PISCO. In fact the law recognises the fact that there may be two or more GIs that have the same name and therefore makes allowances for them.”
Recalling the examples she presented before the HC of the Bangla and Odiya Roshogolla, she notes, “under the GI Act it doesn’t matter who came first.”
Detailing the two broad ways in which a GI can be recognised, Majumder said, “If your country doesn’t have a GI law, it can negotiate a Free Trade Agreement (FTA), with another country for recognition of its specific GIs, like the European Union routinely does, when it comes to the protection of alcoholic beverages, and spirits.”
Underlining that the 1999 Act covers both natural and manufactured products, ranging from Madhubani paintings to Tirupati Ladoos, Majumder also explained that two similar products, which have similar names, can be recognised as distinct GIs.
Illustrating this with the point of Roshogollas, which were granted GI tags with the prefixes of “Odisha”, and “Bangla”, she said that in the present case, “Peru argued that Chile cannot call their beverage PISCO, but the court said that both of you can make PISCO and the two can coexist—the solution lies in distinguishing them by the names Peruvian Pisco and Chilean Pisco,” she told ThePrint
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How case landed at Delhi HC
In 2005, the Peruvians first approached the Registrar of Trademajumarks and GI, for the grant of the tag “Pisco”, which is a South-American brandy, made of grapes, and originating from Peru and Chile. Two years later, the Chileans opposed this, saying that documents, including free trade agreements from several countries, recognised Pisco as a Chilean beverage, so Peru cannot be granted exclusive monopoly over its GI.
However, in 2009, when the Registrar said Peru’s Pisco will be known as “Peruvian Pisco” to avoid any confusion or deception among the people, the Peruvians took this matter to IPAB–which is an appellate, quasi-judicial body, which allowed them exclusive control over the GI in 2018.
Challenging this, the Chilean Pisco producers approached the Delhi HC.
The Chileans argued that Pisco hails from the river valleys of Elqui, Limari, Huasco, Copiapo and Choapa. Producers of the Chilean association have been producing and marketing Chilean Pisco for well over a century, they said.
Saying that the production of Pisco was carried out extensively and continuously, and there are historical and geographical links between the two countries, Chile said the GI tag identifies a good as originating in a particular territory.
On the other hand, Peru argued that there was huge “inordinate delay” in the time it took Chile to come to the court, challenging the 2018 order. They also argued that the Chilean Association had itself admitted that Peru has a right over the Pisco GI.
Interestingly, the Peruvians also pointed out that Gabriel González Videla, who later served as president of the Republic of Chile, promoted a law in 1936 to change the name of a city from “La Union” to “Pisco Elqui”. Terming this as a “despicable measure” to illegally benefit from the reputation of the Peruvian beverage, they said it is undisputed that Peru is the producer of the beverage.
Referring to the contours of the 1999 Act on the subject, the court said the GI Act provides for registration and better protection of geographical indications. They aim to protect the interests of consumers and producers, and exclude unauthorised persons from misusing GI’s, it said.
However, it recognised that Pisco produced in Chile is distinct from the one produced in Peru, and the two countries can coexist in the realm of Pisco production.
“This court is of the view that considering the fact that the alcoholic beverage in question from Chile is also recognised and identified, the world over as Pisco, grant of a GI for the word Pisco per se, exclusively to respondent no. 4, without specifying the GI of Peru, would be detrimental to the legal and legitimate commercial interest of producers of Pisco in Chile, and the same would also likely deceive and cause confusion.”
(Edited by Amrtansh Arora)
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