Intellectual Property Rights - Requirement of protection of ‘Geographical Indication’ and its obligations on the UAE
“There is certainly no kind of property, in the nature of things, so much his own, as the works which a person originates from his own creative imagination: And when he has spent great part of his life in study, wasted his time, his fortune & perhaps his health in improving his knowledge & correcting his taste, it is a principle of natural justice that he should be entitled to the profits arising from the sale of his works as a compensation for his labor in producing them, & his risk of reputation in offering them to the public.” – Joel Barlow
Intellectual Property Rights are a set of proprietary rights that are granted to the Individuals over their creation. The holder or owners of these set of rights are entitled to various exclusive privileges and immunities. An example of intellectual property rights includes the right which is available to a musician or an author of a publication from his work being infringed or violated. These set of rights differ and vary from country to country. Intellectual property applies to the various creations of an individual such as inventions, artistic works, literary works, designs, etc.
However, in the case of a copyright, the idea must be expressed in a material form, in order, to be entitled to the benefits of protection. Intellectual property as a right, was recognized for the first time in the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886). Similar to patent and trademark, ‘Geographical Indication' is also an essential type of intellectual property right.
This article will analyse the need for the protection of ‘Geographical Indication’, as well as, its National and International obligations within the UAE:
Defining ‘Geographical Indication’
‘Geographical indication’, being a type of intellectual property right, is an important aspect of the intellectual property. The term ‘Geographical Indication’ refers to a sign which has a specific geographical origin. Such a sign, when used on the goods, indicate that the goods possess a certain quality, reputation, and such other characteristic attributes which belongs to their place of origin.
In order for a ‘GI’ to be applicable to a particular product, the sign affixed to the product must indicate its place of origin thereby indicating its unique quality. ‘Geographical Indication’ as a right is covered under the Paris Convention for the Protection of Industrial Property (1883), which is administered by the WIPO and it is also covered under the TRIPS agreement. Under the WIPO, the Standing Committee (SCT) on the Law of Trademarks, Industrial Designs, and Geographical Indications is a forum which discusses and develops policies and laws relating to Geographical Indications.
The TRIPS Agreement defines geographical indication as "indications which identify a good as originating in the territory of a Member, or a region, or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin."
The concept of Geographical Indication:
Earlier the concept of “Geographical Indication” was mainly used to denote agricultural products belonging to a particular region, since various factors such as soil and climate of the region would make an impact on the quality of the product. However, with globalization and development, now these indications are used on a wide range of products, whether manufactured or natural; and they convey assurance of being unique and having a particular quality which is attributable to a geographical locality, region, or a particular country. The indication of the origin may relate to a town, as well as, for example, Swiss Chocolates, Pinggu Peaches, etc.
The philosophy behind Geographical Indication:
The ‘Geographical Indication’ protection is recognized as an intellectual property right, which is accessible to the consumer to use such intellectual property and to restrict others from making any similar use of such property. Since ‘Geographical Indication’ is a sign which certifies that the product possesses certain qualities and it is necessary to protect them. The core idea behind the development of this concept was to protect an individual from the violation of his privacy and the form of his expression. Therefore, if the concept of ‘Geographical Indication' is not protected, it would definitely violate the principles of natural justice.
Need for protection of Geographical Indication:
Geographical Indications denote the quality, value, and peculiarity which a particular product possesses and therefore, they have a certain amount of reputation affixed to it. This kind of reputation is based or dependent upon the place of the product's origin and the value attached to it; therefore, if ample protection is not provided, the product maybe misrepresented which may cause confusion to the general public or to the consumer who violates the principles of protection of Intellectual property rights. Use of indications by persons who are not authorized to use it deceives the consumers, and moreover, it affects the reputation of the genuine product.
Example: As we all know ‘Darjeeling Tea’ is world renowned and has a certain characteristic attribute attached to it. It possesses such reputation owing to its geographical origin. Therefore, if a person produces a product in the name of ‘Darjeeling Tea’ without it being produced in the Darjeeling gardens, it would have a deleterious effect on its consumers, since it is purchased with a genuine trust and confidence. Thus the ‘GI’ right grants a monopoly right to the owner from his product being infringed. Another example is that of the Comté Cheese, for the production of which, it is necessary that the milk should be from the French Simmental breeds.
Some of the benefits of the grant of ‘Geographical Indication’ are the following:
- Entitled to take action against violation or infringement of the commodity or goods and services.
- Increase in brand value.
- Promotes economic prosperity.
Since the application of ‘Geographical Indication’ has been widely recognized throughout the world, they stand on an equal footing with other intellectual property rights such as trademark and copyrights. The growth of technological advancement has also resulted in an increase in the manufacturing process and new methods of production. Therefore, the need for the protection of geographical indication is of utmost importance.
Hindrance for the protection of Geographical Indication:
- If the Commodity/product to be protected is generic in character, in such cases, the protection may not be granted. In other words, if the sign affixed to the product is a common name for the same kind of products then ‘GI’ may not be granted.
- If the ‘GI’ which is to be granted is already in existence, in such cases protection may not be granted.
Article 22 of the TRIPs Agreement lays down the rule that, all the member states must provide their own set of national laws for the protection of Geographical Indication. Further, the Articles 23 and 24 of the TRIPs Agreement also deals with the protection of ‘Geographical Indication.' Broadly speaking, though several international conventions have laid down the rules relating to the protection of Geographical Indication, it is the concerned Nation’s responsibility to provide for and implement its own set of rules and regulations for the protection of Geographical Indication. The UAE, being a member of the TRIPS Agreement, WTO, and WIPO since April 10, 1996, is devoted to complying with the provisions which regulate the geographical indications and various other aspects of the Intellectual Property Laws. As a result, apart from being a member and conforming to several International Conventions, the UAE has also adopted various national legislation to enforce intellectual property laws in the UAE, such as the following:
- Federal Law Number 17 of 2009 on the Protection of New Plant Varieties(2010)
- Federal Law Number 31 of 2006 pertaining to the Industrial Regulation and Protection of Patents, Industrial Drawings, and Designs (2002).
- Federal Law Number 7 of 2002 concerning Copyrights and Neighboring Rights (2002).
- Federal Law Number 37 of 1992 on Trademarks (as amended by Law No.19 of 2000 and Law Number 8 of 2002).
Laws relating to Intellectual Property-
- Federal Decree Law Number 5 of 2012 on Combating Cybercrimes (2012).
- Federal Law Number 7 of 2008 on the National Center for Documentation and Research (2008).
- Federal Law Number 6 of 2008 on Establishing a National Council for Tourism and Antiquities (2008).
- Federal Law by Decree Number 3 of 2003 regarding the Organization of Telecommunications Sector (as amended) (2008).
- Federal Decree Number 85 of 2007 on the Common Customs Law for the Arab States of the Gulf (2007).
- Federal Law Number 24 of 2006 concerning Consumer Protection (2006).
- Federal Law Number 1 of 2006 on Electronic Commerce and Transactions (2006).
- Common Customs Law of the Gulf Cooperation Council (GCC) of 2003, with its Rules of Implementation and Explanatory Notes (2003).
- Federal Law by Decree Number 3 of 2003 on Telecom Law (2003).
- Law Number 18 of 1993 on Commercial Transactions (1993).
- Law Number 1 of 1992 of the Emirate of Sharjah on Antiquities (1992).
- Law Number 8 of 1984 on Commercial Companies, as amended (1984).
- Federal Judicial Authority Law Number 3 of 1983 (1983).
- Federal Law Number 15 of 1980 on the Press and Publication (1980).
- Federal Law Number 8 of 1980 on Regulation of Labour Relation (1980).
- Law Number 5 of 1973 on Commercial Register (1973).
The Federal Law Number 8 of 2002, as mentioned above, provides provisions for the protection of Geographical Indication and it states as the following:
Article (3) - The following shall not be registered as trademarks or as component elements thereof-
(6) “Geographical names and data when they would create uncertainty as to the origin or source of the goods, the products or the services."
(8) "Marks which are likely to deceive the public or which contain false indications as to the origin or source of the products or the services or as to its characteristics, as well as Marks containing an indication of a fictitious, falsified or counterfeit trade name."
Therefore, it evident from the above set of legislation that the UAE not only grants protection to patents, copyrights, plant varieties, and industrial designs but also advances protection to ‘Geographical Indications’ as well. The ambit of the Federal Law No.8 of 2002 is wide, and it gives protection not only to a particular commodity but also includes a wide range of goods and services. Further, Geographical Indications are not only protected through National legislation and International agreements but also through concepts which prevent unfair competitions.
Therefore, the concept of ‘Geographical Indication’ is an instrument for linking the quality of a commodity and its geographical origin. It is pertinent to note that with the current globalization and trade liberalization, Geographical Indication has become a subject matter of great significance. Further, the UAE is able to fully reap the advantages of geographical indications and can grant adequate protection to various goods and commodities from infringement.