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The Pisco Wine GI opposition resolved in India

Issue: December 2009/January 2010

Keywords (click to search): India outbound investment IP trade marks

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Lex Orbis
Manisha Singh Nair
manisha@lexorbis.com

Although a relatively new area of intellectual property practice, geographical indications (GIs) is catching up. The nature of rights and the products upon which these are accorded raises many issues for consideration and deliberation. Factors such as climate, soil and skill have an impact on products qualifying as GIs, and there are frequently disputes relating to these.

At an international level, the protection of GIs is covered under a number of treaties administered by the World Intellectual Property Organization (WIPO) - most notably the Paris Convention for the Protection of Industrial Property of 1883, and the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration. In addition, Articles 22 to 24 of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) also deal with the international protection of GIs within the framework of the WTO. The legislation prevailing in India is the Geographical Indications of Goods (Registration & Protection) Act, 1999.

While GI issues are being resolved, territorial issues are occupying centre stage. In this respect, the GI application with respect to Basmati still remains unresolved. However, the latest rendition in the area is the order of the Assistant Registrar of Trademarks and Geographical Indications passed in respect of the application for a GI registration for Pisco Wine. The wine in question is available in the Pisco region, which is a port area historically shared by Chile and Peru.

The application in dispute had been filed by the Embassy of Peru and underwent publication in September 2006. Pursuant to this, an opposition was filed by Mohan Dewan and Asociacion De Productories De Pisco A.G. of Los Carrera N 380, Depto. 414, La Serena, Chile. It was stated that the Embassy of Peru was not entitled to file the application under Section 11 of the Geographical Indications of Goods (Registration and Protection) Act, 1999.

Section 11 (1) of the Geographical Indications of Goods (Registration & Protection) Act, 1999 reads: "Any association of persons or producers or any organization or authority established by or under any law for the time being in force representing the interest of the producers of the concerned goods, who are desirous of registering a geographical indication in relation to such goods shall apply in writing to the Registrar in such form and in such manner and accompanied by such fees as may be prescribed for the registration of the geographical indication."

Furthermore, it was also declared that PISCO is common to use in other countries and cannot be recognised as a GI in respect of the applicant. It was mentioned that the GI application had been filed before various countries and in some countries their application for registration of a GI had been refused.

The second opponent, on the other hand, asserted that the Embassy of Peru was not a proper representative of the producers, and that they subsequently could not represent their interests. They stated that in agreement with the affidavit filed, they had no objection to the registration of the GI PERUVIAN PISCO provided the Embassy of Peru gave no objection to the opponent's proposed application for CHILEAN PISCO.

On the issue of locus standi (the right of a party to appear and be heard before a court) of the Embassy of Peru being the correct authority to pursue the GI application, the Assistant Registrar stated that the Embassy of Peru was the true representative of the Peruvian government. He added that they could look after the interest of the producers of the GI in respect of a particular area or country.

In respect of the second objection, the Assistant Registrar - upon examination of the records - stated that it was undisputed that PISCO was an established GI in the country of Peru, as well as the fact that both Chile and Peru were using PISCO. He acknowledged that in such a scenario, a likelihood of confusion among consumers cannot be negated. In this respect, the Assistant Registrar said that if the present application for a GI be registered under the title of Peruvian Pisco, no confusion or deception among consumers would be caused. In this respect, the application was accepted for registration as Peruvian Pisco, and the oppositions were dismissed.

The prominence that GIs have gained calls for the prevailing issues to be resolved. With the Pisco wine dispute being resolved in the manner stated above, a way forward seems to have been paved for applicants who strive to resolve issues emerging out of territorial commonality in different jurisdictions.


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