Analyzing the inspection mechanism of registered GIs under the Indian GI regime, and highlighting some practical loopholes within it, we are pleased to bring to you this guest post by Sakshee Sahay. Sakshee is currently pursuing a Masters of Law in IP from the Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, Kharagpur. She is also a Trademark Attorney and a registered Advocate at the Bar Council of Delhi.
An Assessment of Inspection Mechanism in the Indian GI Regime
By Sakshee Sahay
The inspection mechanism for the registered geographical indication(s) (GI) and the GI Applications outlined in the Geographical Indication Act encompasses two primary forms: inspections conducted by designated inspection bodies (IB) and those carried out by the public. Inspection by designated bodies is governed by Rule 32 (1)(6)(g), of the GI Rules as well as Form GI-I. These rules and forms dictate the procedures and protocols to be followed during inspections conducted by authorized entities. On the other hand, inspections by the public are regulated by Section 78 of the GI Act in conjunction with Rule 94 and Rule 95 of the GI Rules. These provisions empower members of the public to participate in the inspection process, ensuring transparency and accountability within the GI framework.
In this post, the author critically analyses the inspection mechanism by IBs provided under the Act of 1999 and highlights some of the practical loopholes in it.
Meaning of Inspection
It is pertinent to note that there is no definition of the term ‘Inspection Bodies’ in law. Therefore, I have taken the dictionary meaning of the term to ensure clarity and certainty in the interpretation. The Cambridge Dictionary defines inspection as; ‘the act of looking at something carefully, on an official visit to a building or organization to check that everything is correct and legal’. In the context of GIs, the inspection structure aims to regulate the use of the GI in the territory to which it relates. In India, inspection is conducted by a body (inspection body) comprised of authorized users of the GI along with representatives and members of the Central or State Government, tasked with ensuring quality assurance and preventing misuse of the GI. This oversight can be facilitated either through an internal watchdog mechanism or a control mechanism, each of which is explained in detail in the later part.
It is important to look at other models too. For e.g., in the context of China, Zhao et al, have presented an ideal inspection networking model amongst the authorised users (“Peasant Holders”), Associations and third party firms. (see figure below). The diagram illustrates the Chinese model of registration and regulation of GI which is managed by the Associations, subsequently maintained by users of the GI, and the associations also offer skills and training to the users. Comparing with other models helps us understand the strengths and weaknesses of the Indian inspection mechanism, exploring potential improvements, and possibly advocating for the incorporation of elements from successful models like the one proposed by Zhao to enhance the efficacy of the Indian GI regime. The idea here is to explain the idealistic networking in the GI Registration and management mechanism.
The firm, as a third party, is responsible for supervising the Association and contributes to product processing and manufacturing of the GI.
Fig: Main interactions among associations, firms and peasant households in the GIs industry. Source: Zhao T, 2024
Who Can be Inspection Bodies?
The Inspection Body is responsible for to monitoring the production in respect of quality, integrity and consistency of the product as well as the genuine use of the GI. Several examples of IBs encompass both governmental and non-governmental entities. The government plays an active role as a proprietor and subsequently in quality control and management. Having the Government serve as the ‘applicant’ or ‘inspection body’ could potentially boost consumer trust in the quality of Geographical Indication (GI) products originating from developing and emerging nations. For instance, entities like Karnataka State Handicrafts Development Corporation (KSHDC) provide an assurance of authenticity by virtue of their governmental affiliation. Karnataka State Development Corporation is the IB and Proprietor for almost all the handicraft GI of Karnataka. Some of the successful GI includes Kinhal Toys (Application No. 213), Bidriware (Application No. 20), Kasuti Embroidery (Application No. 31), Channapatna Toys & Dolls (Application No. 23) etc.Some of the Governmental bodies includes the Export Promotion Bureau, Textiles Committee, and various departments of the Indian government, such as the Ministry and State Government. Additionally, organizations like the Quality Council of India, NABARD, and the Agro Food Export Association Consortium play significant roles in the inspection mechanism. District Administrations, traders, exporters of GI products, as well as representatives from related artisan and craftsman associations, are also involved as a member of IBs. Specific instances include the Banaras Metal Craft Development Society overseeing Banaras Metal Repousse Craft (Application Number 398), the Nisha Craft Vikas Samiti for Gazipur Wall-hanging products (Application No. 555). It’s important to highlight that while IBs and applicants are often interchangeable, there are exceptions. Applicants can vary from governmental bodies to communities. However, an IB is a formal organization established by Authorized Users (or applicants). The Inspection Body is setup by the Applicant to monitor the production in respect of quality, integrity and consistency of the product as well as the genuine use of the GI.
Inspection Bodies- Mandatory or Not?
The Geographical Indications Act 1999, does not mandate the GI to have an IB. The Applicant may submit the GI Application Form without having such application body or with a plan to establish an Inspection Body. Bhattacharya’s study on Quality Control of registered bodies with IBs reveals that in states with a large number of GIs, the majority have an IB in place (see the table below).
Source: Bhattacharya N.S (2021)
This trend can be likened to the concept of quality control in manufacturing. Just as products often undergo inspection to ensure they meet certain standards, GIs may benefit from the oversight and validation provided by an IB. The presence of an IB could indicate a commitment to maintaining the authenticity and quality of the GI product, potentially increasing consumer trust and market value.
Workings of Inspection Bodies
The functioning of inspection bodies within the GI framework is multifaceted and crucial for maintaining product quality and authenticity. These bodies operate with several key objectives in mind, including ensuring the integrity of GI products, preventing quality degradation, and combating counterfeiting. One essential aspect of their operation is the implementation of an internal watchdog mechanism. For example, the cultivation of products like Sirarakhong Hathei (chilli) (Application No. 592) and Naga Cucumber (Application No. 640) is closely monitored by internal committees to preserve their unique characteristics specified in the GI registration. These Bodies consist of representatives from farmer groups, agricultural departments, and horticultural development officers, among others, ensuring comprehensive oversight.
On the other hand, control mechanisms are also employed to differentiate genuine products from counterfeited ones. For instance, the Department of Handloom and Textiles utilizes specialized machines to distinguish original Kancheepuram Silk (Application No. 15) from duplicates. Additionally, in cases such as Nihonshu (Japanese Sake) (Application No. 994), regulatory agencies like the National Tax Agency of Japan utilize relevant legislation to verify the origin of ingredients, ensuring adherence to GI specifications and maintaining product authenticity throughout the supply chain.
Loopholes and Challenges
Despite the robust mechanisms in place for GI protection, several loopholes and challenges persist within the GI system of regulation of IB. Firstly, there is a non-mandatory requirement for the declaration of IB in the Statement of Case under Form GI-I, leaving room for potential oversight and inconsistency in inspection procedures. Additionally, there is no statutory liability imposed on IBs for misuse or wrongful conduct during quality verification, creating gaps in accountability.
Furthermore, the absence of a statutory requirement for Post-Registration Quality Assurance leaves GI products vulnerable to quality degradation post-registration. Moreover, there is a lack of awareness about the importance of GIs among stakeholders, compounded by the perception that registered GIs do not significantly impact market value, diminishing incentives for investment in quality assurance technologies.
Additionally, states with poor representation of GIs often lack the resources or inclination to implement technology-driven quality assurance measures, further exacerbating the issue. For instance, Banarasi Saree (Application No. 237), Venkatgiri Saree (Application No. 189), and Pashmina Silk (Application No. 775) have not been able to benefit from their GI tags because their IBs have failed to stop its weavers from lowering the quality for their goods. These challenges highlight the need for regulatory reforms and increased awareness to strengthen GI protection mechanisms and preserve the integrity and authenticity of registered products.
Concluding Remarks
In conclusion, the analysis highlights a significant gap in the protection and promotion of GIs). While there’s no mandatory requirement for IB declaration in Form GI-I, coupled with the absence of statutory liability for authorised users of GI regarding quality verification and post-registration quality assurance, the overall awareness of GI importance appears lacking. This is evidenced by the limited market impact of registered GIs, particularly in states with fewer GIs, indicating a need for regulatory measures to enhance GI protection and promotion. The comprehensive quality control measures, encompassing both pre-market and post-market surveillance, are vital for ensuring the authenticity and value of GIs.