Geographical Indications and Community Brand Equity in India

Vineela M

Geographical Indications and Community Brand Equity in India

September 27, 202611 min read In-depth analysis

Certification marks, collective marks and geographical indications (GIs) may seem similar because they can be used by more than one business or producer. However, they are not the same. Each serves a different purpose and provides different information to consumers.

A certification mark generally shows that goods or services meet certain prescribed standards. A collective mark is connected with membership of an association or group. A geographical indication (GI), on the other hand, connects goods with a particular geographical area and indicates that their quality, reputation or other characteristics are linked to that place.

These differences are important because the rules relating to ownership, use and protection are different. Therefore, it is necessary to understand the purpose of each form of protection before deciding which one is appropriate.

Introduction

An ordinary trade mark mainly helps consumers distinguish the goods or services of one business from those of another. Certification marks and collective marks are also part of the trade mark system, but they perform different functions. They may be used by several businesses or persons, but the reason for allowing such use is different.

In India, certification marks and collective marks are governed by the Trade Marks Act, 1999. Geographical indications are protected under a separate legislation, the Geographical Indications of Goods (Registration and Protection) Act, 1999.

The distinction between these three forms of protection can be understood by looking at what each one tells the consumer. A certification mark tells the consumer that certain standards have been satisfied. A collective mark indicates a connection with a particular association. A GI indicates that the goods come from a particular geographical area and that their quality, reputation or other characteristics are associated with that origin.

Thus, although more than one person may be entitled to use these signs, the legal basis for their use is not the same.

Certification Marks

Section 2(1)(e) of the Trade Marks Act, 1999 defines a certification trade mark as a mark capable of distinguishing goods or services that have been certified by the proprietor as complying with a prescribed standard from those that do not comply with that standard.

The certification may relate to matters such as geographical origin, material, method of manufacture, quality, accuracy or other characteristics of goods or services.

The main feature of a certification mark is that its use depends on meeting the prescribed standards. A business does not get the right to use the mark merely because it belongs to a particular group. It must satisfy the requirements laid down for certification.

For example, a certification body may establish standards relating to the quality, safety or composition of a particular product. Businesses that satisfy those requirements may then be permitted to use the certification mark. In this way, the mark gives consumers some assurance about the characteristics of the goods or services.

There are also certain requirements relating to the proprietor of a certification mark. The proprietor must be competent to certify the goods or services concerned. The proprietor is generally not permitted to carry on trade in the goods or provide the services to which the certification relates. This helps maintain the independence of the certifying body.

The application for registration must also be accompanied by regulations governing the use of the certification mark. These regulations set out the conditions that have to be met before the mark can be used.

A certification mark may certify geographical origin as one of the characteristics of goods. However, this does not automatically make it a GI. A GI requires a specific legal connection between the goods and the geographical area from which they originate.

Collective Marks

Collective marks are different because they are mainly concerned with the relationship between the user and an association.

Section 2(1)(g) of the Trade Marks Act, 1999 defines a collective mark as a mark distinguishing the goods or services of members of an association of persons, which is the proprietor of the mark, from those of persons who are not members of the association.

In simple terms, the association owns the collective mark and its members are allowed to use it according to the applicable rules.

The association may establish regulations dealing with membership, conditions of use, quality requirements and other matters. These regulations are important because they determine how the mark can be used by members.

For example, a group of handicraft producers may form an association and adopt a common mark. Members may use the mark on their products to show their connection with the association while continuing to sell their products under their own individual trade marks.

Collective marks can therefore be useful for professional associations, producer groups, cooperatives and similar organisations. They allow members to develop a common identity without requiring them to give up their individual business identities.

The main difference between a collective mark and a certification mark is the basis for use. In the case of a certification mark, the important question is whether the goods or services meet the prescribed standards. In the case of a collective mark, membership of the association is central to the right to use the mark.

Geographical Indications

A geographical indication is based on a different concept. It is concerned with the connection between goods and a particular geographical area.

Under the Geographical Indications of Goods (Registration and Protection) Act, 1999, a geographical indication identifies goods as originating in a particular country, region or locality where a given quality, reputation or other characteristic of the goods is essentially attributable to that geographical origin.

The connection with the geographical area is therefore the main feature of GI protection. The qualities or reputation of the goods may be the result of natural conditions, local skills, traditional knowledge, human factors or a combination of these.

For certain manufactured goods, the law also requires that at least one of the activities of production, processing or preparation takes place in the relevant territory.

GIs are particularly important for products whose reputation has developed because of their association with a particular place. Consumers may recognise the geographical name and associate it with certain qualities or characteristics.

For this reason, GI protection is not simply about protecting a name. It protects the connection between the geographical area and the goods associated with it.

Ownership and Use of a GI

The ownership and use of a GI are also different from those of an ordinary trade mark.

An association of persons or producers, an organisation or an authority established by or under law that represents the interests of the producers of the relevant goods may apply for registration of a GI.

After registration, producers in the relevant geographical area may apply to become authorised users. An authorised user can use the registered GI in relation to the goods for which the relevant requirements are satisfied.

This arrangement reflects the collective nature of GI protection. The reputation of a GI is not generally treated as the private property of one producer. Instead, it is connected with the geographical area and the producers who satisfy the relevant conditions.

This is also why a registered GI cannot be treated in the same way as an ordinary trade mark. The GI Act prohibits the assignment, transmission, licensing, pledging and mortgaging of registered geographical indications.

The authorised user system also helps prevent unauthorised persons from using the GI and protects the reputation of the goods as well as consumer interests.

How GIs Differ from Certification and Collective Marks

The differences become clearer when we consider what each form of protection communicates.

A certification mark is concerned mainly with compliance with prescribed standards. The standards may relate to quality, material, manufacturing process, safety, geographical origin or other characteristics.

A collective mark is concerned with membership of or connection with an association. It identifies goods or services of members of the association and distinguishes them from those of non-members.

A GI is concerned with the relationship between goods and a particular geographical origin. The quality, reputation or other characteristics of the goods must be essentially attributable to that geographical origin.

The basic distinction can therefore be stated simply:

Certification mark: shows that specified standards have been met.
Collective mark: shows that the user belongs to or is connected with an association.
GI: shows that goods are connected with a particular geographical origin.

The fact that several businesses or producers may use a sign does not make these forms of protection interchangeable. The purpose of the sign and the legal conditions attached to its use are more important.

Enforcement and Protection

The differences also become important when there is unauthorised use.

In the case of GIs, protection is closely connected with preventing misleading use of geographical indications. The law seeks to prevent consumers from being misled about the geographical origin of goods and also provides protection against certain forms of misuse and unfair competition.

Certification marks and collective marks are protected under the trade mark framework. The rights and remedies available will depend on the particular registration, the applicable regulations and the circumstances of the unauthorised use.

The regulations governing certification and collective marks are particularly relevant because they determine who is entitled to use the mark and the conditions attached to such use. Similarly, in the case of a GI, the authorised user system helps identify producers who are legally entitled to use the indication.

Therefore, the choice of protection should not be based only on the appearance or name of a sign. Its purpose, the persons entitled to use it and its relationship with the relevant goods or services should also be considered.

Choosing the Right Protection Route

The appropriate form of protection depends on what the sign is intended to communicate.

A certification mark may be appropriate where the main purpose is to show that goods or services satisfy particular standards. These standards may concern quality, safety, materials, manufacturing methods, performance or other characteristics.

A collective mark may be appropriate where an association wants its members to use a common mark. It can be useful for professional associations, producer groups, cooperatives and other organisations that want to create a common identity while allowing members to continue their individual activities.

A GI is appropriate where the quality, reputation or other characteristics of goods are closely connected with a particular geographical area. In such cases, the geographical area and the connection between the goods and that area are important factors.

The decision should therefore be based on the function of the sign rather than simply on the number of people who will use it.

Can These Forms of Protection Coexist?

These forms of protection are not necessarily alternatives to each other. In some situations, they can exist alongside an ordinary trade mark or alongside each other.

For example, a producer may use its own individual trade mark while also being a member of an association that owns a collective mark. If the producer satisfies the requirements relating to a registered GI, the producer may also become an authorised user of that GI.

The same product may therefore carry different signs, with each one providing different information to consumers. The individual trade mark may identify the particular business. The collective mark may show its connection with an association, while the GI may indicate the geographical origin and the reputation or characteristics associated with that origin.

This shows that the three forms of protection can serve different purposes at the same time. They are not necessarily competing forms of protection.

Conclusion

Certification marks, collective marks and geographical indications may appear similar because they can involve use by more than one business or producer. However, their legal purposes are different.

A certification mark focuses on compliance with prescribed standards. A collective mark is mainly concerned with membership of an association. A GI is based on the connection between goods and their geographical origin.

Understanding these differences is important for businesses, associations and producer groups when considering intellectual property protection in India. The appropriate form of protection depends on what the sign is intended to communicate, who should be allowed to use it and the legal relationship between the sign, its users and the relevant goods or services.

In simple terms, a certification mark tells consumers about standards, a collective mark tells them about association membership, and a GI tells them about the geographical origin and characteristics of goods.

This article provides a general overview of the Indian legal framework and is not intended to constitute legal advice. The appropriate form of protection in a particular situation should be considered with reference to the applicable statutory provisions, regulations, product specifications and circumstances of the applicant.

Also Read: Geographical Indications in India: Registration, Rights and Enforcement