Protecting Darjeeling Tea under IP Laws – A Critical Analysis
November 23, 2021
All over the world, there are various kinds of goods or products that are preferred by the consumers over other products for only one reason. That is the high quality of certain goods that are derived from the place where they originated. Most of the time the consumers put a high value on such products because of the special and particular production method of such goods. This is influenced by the unique geographical factors of the place where such a product originates or because of the special and exceptional natural conditions of the region where such products are made or grown.
For example, Roquefort blue cheese is a particular type of blue cheese that is aged only in the natural caves of Combalou Caves of Roquefort-Sur-Soulzon in southern France and that is why it is considered as one of the world’s best blue cheese and is preferred by the consumer over other blue cheese brands. Such goods that exhibit characteristics that resemble or attach them to any specific region are given a tag of geographical indication or GI.
A geographical indication is an indicator of the fact that certain types of goods or products originated from a specific territory of a country or a region of that territory, provided that a high-quality reputation or some other special and unique characteristics of the products can be attributed to the geographical location. In other words, geographical indications help in recognizing the essential role played by climatic or geographical factors and/or by human skills in the end quality of a product.
Geographical Indication as an Intellectual Property
The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is considered one of the most complete and important multilateral agreements relating to intellectual property. TRIPS classifies geographical indications as a type of intellectual property; geographical indications are defined under Article 22(1) of the agreement as indications that identify a product that originates in a local region or territory of a member of the WTO, where the unique and special characteristics or the high quality of the product is attributable to such geographic region.
Like trademarks, geographical indications are considered highly valuable by the producers for several reasons. Firstly, they act as a source identifier i.e. they help to identify products as originating from a particular region or territory. Secondly, they act as an indicator of high-quality products; consumers can easily ascertain the quality of a product that has a GI tag as it indicates to the consumer that the product comes from a region or territory where the unique and special characteristics or the high quality of the product is attributable to such geographic region.
Thirdly, geographical indications help in attracting business for the particular region or territory where the high-quality product originates and thereby raise the social and economic status of that region. Finally, as geographical indications are intellectual property, they are eligible for protection from acts of infringement and unfair means in a competitive market. Therefore we can say that much like trademarks and registered commercial names, geographical indications are also an intellectual property that helps in identifying the products and developing their goodwill in the market.
However over the years as the countries have become more and more globalized, geographical indications have also evolved into something more than just a type of intellectual property. Nowadays geographical indications are also used to perform important economic functions like protecting various intangible economic assets like market standards, reputation, and market differentiation. Recent trends show that consumers all over the world and especially from developed countries are getting very choosy about the quality of products that they are purchasing and because of this trend geographical indications are gaining a lot of importance as they convey such information which helps the consumer in identifying goods which are of high quality which is attributable to their place of origin.
Need for Legal Protection of Geographical Indications
Given the great economic implications of geographical indications, legal protection of this intellectual property becomes even more crucial, as, without such protection, immoral businessmen or companies could misappropriate the gains arising from the reputation and goodwill associated with the geographical indications and this would eventually lead to loss of income for the actual and real holders of the GI tag.
International Protection under TRIPS Agreement
The TRIPS agreement lays down certain standards of protection that the members of the WTO have to maintain. However, the scope of protection provided under the TRIPS agreement is limited as it faces the challenge of hierarchy. Even though there is only one single definition of geographical indication under the TRIPS agreement, it commands a two-level protection system: i) the general protection applicable to all geographical indications under Article 22 of TRIPS, and ii) Additional and special protection available to geographical indications on wines and spirits under Article 23 of TRIPS.
The problem with this kind of protection is that if Article 22 fails to provide adequate protection to the geographical indications, a businessman not belonging from the region indicated by the GI tag may use the tag for his gain.
As far as the protection of geographical indications is concerned, the Indian government has taken a different approach than the TRIPS agreement, as the GI Act does not provide any special protection to wines and spirits; rather it has given the Government the discretionary power to decide as to which product deserves a high level of protection. This step was deliberately taken to provide a higher and more stringent level of protection to geographical indications that originate in India in comparison to the protection provided by the TRIPS agreement.
Section 1(3)(e) of the Indian GI Act clarifies that a name that is not a name of a country or region can also be considered as a geographical indication if it is related to any specific geographic region and then is used in relation to a product which originates from that particular region. Thus, this provision also helps in protecting names other than geographical names, such as ‘Basmati’. Even though registration of geographical indication is not mandatory in India, Section 20 of the GI Act says that no one would be entitled to any relief for the damages caused by the infringement of any unregistered geographical indication. Thus we can say that registration of geographical indication confers the right on the genuine holder of the GI tag to institute suit for infringements of geographical indications.
Some of the examples of goods or products of Indian origin that have been granted the GI tag are as follows:
Kanchipuram Silk Saree
Out of all these, the case of Darjeeling tea is the most peculiar because of the various challenges the word and logo of Darjeeling tea have faced and what all steps were and could be taken to protect it as a vital intellectual property of India.
Darjeeling Tea and its Uniqueness
Over the years tea has become an essential beverage in the day-to-day life of every Indian; more than eight out of ten households have tea daily. India also had the lead in the race of production of tea as it was the largest producer of tea globally, with almost 30 % of the world’s tea coming from India. However, lately, China has overtaken India as the largest producer of tea. Yet, Indian tea is considered unique because some particular type of tea is grown only in India, such as Assam tea, Nilgiri tea, and Darjeeling tea. Out of all these, Darjeeling tea is loved and held in high regard by all the tea connoisseurs across the world.
Darjeeling tea is regarded as a premium quality tea, which is produced in the Darjeeling region which is a hilly area in the state of West Bengal. Out of all kinds of tea produced in India, Darjeeling tea offers unique characteristics of flavor and quality that have earned it admirers all over the world.
History of Darjeeling Tea
The history of Darjeeling tea dates back to the 1840s when India was still under Imperial rule. In the year 1839, Dr. A. Campbell was made the first superintendent of the Darjeeling district; he planted some seeds near his residence which he had brought from the Kumaon hills of North India. The British Company seeing the success of Dr. Campbell’s tea nursery decided to establish more tea nurseries in the same region in the year 1847. Over the years the plantation tea nurseries increased in the region and the tea produced in that region became famous for its distinctive high quality and the name Darjeeling tea gained a lot of admiration and reputation in the market and this is how Darjeeling tea became a heritage.
Post-independence, the ownership of these tea nurseries was transferred to Indian entrepreneurs. The majority of Darjeeling tea was exported to countries like the USA, UK, Japan, Russia, and other EU countries. However, the portion of tea that was exported to these countries was blended with other kinds of cheap tea and was sold under the name of Darjeeling tea; therefore, they took the advantage of Darjeeling tea’s heritage and good reputation. To curtail this exercise and to ensure that only genuine Darjeeling tea would be exported, the Government of India established a mandatory exercise for all the dealers of Darjeeling tea, whereby they were required to enter into a licensing deal with the Tea Board of India under the Tea Act, 1953 under which they had to pay a fee to attain a certificate of authenticity to export Darjeeling tea.
Why does Darjeeling Tea need Legal Protection?
The genuine holders of the rights over Darjeeling tea require a certain level of legal protection from fraudulent practices of various business houses. For example, there have been various instances where tea from Sri Lanka, Nepal, or Kenya has been sold off as Darjeeling tea. Without adequate legal protection, it would be a difficult task to prevent the fraudulent use of the name and reputation of Darjeeling tea in both domestic and international markets wherein various other types of teas which are produced elsewhere are sold off as Darjeeling tea, and this results in damage to the reputation the of the real Darjeeling tea. For all these reasons the Indian Government realized that proper legal protection to the Darjeeling tea as intellectual property was the need of the hour.
Legal Protection available to Darjeeling Tea
Tea Board of India
The Tea Board of India is an administrative body established under Section 4 of the Tea Act 1953. It is authorized to implement all the policies and regulations relating to tea production in India, which means it makes all the decisions relating to the cultivation, production, and sales of tea in India including Darjeeling tea. It works in close collaboration with the Darjeeling Planters’ Association, which is a forum for all the producers of Darjeeling tea. They work together to protect the name and logo of Darjeeling tea. The primary objectives are as follows:
To curtail all the other tea sellers in the world from using the word ‘Darjeeling’ for their tea;
To make sure that the tea sold in domestic and international markets under the name of Darjeeling tea is authentic;
To ensure that all those who are in the business of selling Darjeeling tea have the proper license;
To establish such a structure that the commercial benefits of the brand of Darjeeling tea reach the Indian tea industry and ultimately the workers who work in the plantation.
Moreover, the Tea Board also registered the word Darjeeling and the logo as trademarks under the Trade Marks Act, 1999 and The Geographical Indications of Goods (Registration and Protection) Act, 1999, so that the name and reputation of Darjeeling tea can be protected from fraud.
Protection of the Word & Logo of Darjeeling Tea
One of the most essential steps taken by the Tea Board of India was to create the Darjeeling logo in 1983 which helped them protect the Darjeeling tea from fraudulent activities. Since 1983, the Darjeeling logo has been registered in various countries like the UK, Canada, the USA, Egypt, and Japan. In the year 2000, the Government established a compulsory statutory system of providing a certificate of authenticity to all dealers who were exporting Darjeeling tea.
Under this system, all the dealers were required to mandatorily enter into a license agreement with the Tea Board of India. As per the terms and conditions of the license agreement, the producer had to provide all the relevant information on the production and sale of Darjeeling tea. Through this process, the Tea Board can maintain a complete record of the volume of Darjeeling tea manufactured and sold in a given period. Also, through this they can keep a check on whether there is any kind of blending with the Darjeeling tea as blending Darjeeling tea with any other kind of tea is not permitted.
Protection of Darjeeling Tea as a Geographical Indication
The Tea Board had provided domestic protection to Darjeeling tea by registering the word and logo of Darjeeling tea as a certification mark under the Indian Trade and Merchandise Marks Act, 1958. In the year 1999, the GI Act was passed and it was enforced in the year 2003 and in the year 2004 the Darjeeling tea was granted the status of a geographical indication as the tea was considered to be of high premium quality, it has a unique taste and flavor and most importantly it enjoys a global reputation. All these factors have created a set of unique characteristics for the Darjeeling tea and therefore the protection under the GI Act was considered a necessity.
International Protection to Darjeeling Tea
The Darjeeling tea is protected under the TRIPS agreement as it is a geographical indication. Further, to prevent the fraudulent use of the word and logo of Darjeeling tea, the Tea Board hired Compumark which is a World Wide Watch agency. The agency was tasked with the job of monitoring and reporting all the cases of misuse and fraudulent attempt of registering the word and logo of Darjeeling tea. Several of such cases were reported to the Tea Board. For example, a Switzerland-based company by the name of Bulgari had to withdraw its application to register a tag line for its perfume which was Darjeeling Tea fragrance for men.
Conclusion & Suggestion
From the above analysis, we can conclude that granting of a GI tag to the Darjeeling tea had a positive impact as because of its unique characteristics the price of Darjeeling tea is also very high and that benefits the workers working in the tea plantations. Further, from the above analysis, we can observe that the Tea Board of India has taken various significant steps to protect Darjeeling tea as a geographical indication so that only the genuinely high-quality Darjeeling tea is exported all over the world. This helps in the economic development of our country as the tea exports increase.
However, the scope of protection available at the international level under the TRIPS agreement is very limited as it faces the challenge of hierarchy, as Article 23 provides additional protection to wines and spirits but not to other products like Darjeeling tea. Thus the absence of specific protection for goods like Darjeeling tea jeopardizes its position in the international market i.e. if Article 22 fails to provide adequate protection to the geographical indications, a businessman not belonging from the region indicated by the GI tag may use the tag for his gain. Therefore the Indian Government should ask for an extension of GI protection under the TRIPS agreement to other products as well.
Intellectual Property Rights grants a very pivotal form of protection to intangible property. There are various forms of IP and each form has its unique features and modes of protection. In this article, the author has explained the concept of Geographical Indications, as a form of Intellectual Property. The need for legal protection to GIs has been discussed by the author.
Further, the level of protection given to GIs at both national and international levels has also been discussed. The author focuses mainly on the case of the GI tag given to Darjeeling tea, including the domestic and international legal protection given to it as a GI. The role of the Tea Board of India in protecting Darjeeling tea’s reputation has also been highlighted. Lastly, the author concludes by suggesting that the Indian Government should ask for specific protection of other products like the Darjeeling tea under the TRIPS Agreement.