Reply: Yes. This is provided as Section 26 protects prior registered trade mark.
Can prior common law trade mark rights be asserted to prevent later registration of the same or similar GI?
Reply: Yes it can be.
Can a third party oppose registration of a term on the basis it is generic or a term customary in common language as the common name for particular goods or services?
Reply: Yes. This is provided under section 9(f) which prohibits registration of a GI that has become generic and can be raised as a ground of opposition.
How would India treat an application for the protection of a compound term, which includes a generic component (e.g. "Camembert de Normandie")? Would the generic or common name portion of the compound term (e.g. "camembert") remain available for use?
Reply: Section 11(6) empowers the Registrar to accept a GI application subject to such amendment, modification, conditions or limitations if any, as he thinks fit to impose. In the event of a GI application consisting of a generic component, the common name of such compound terms will be disclaimed as a limitation to such registration and as a condition of registration of such GI and the common name would remain available for use by others.
How does India treat translations of geographical indications?
Reply: The translation of a geographical indication should ultimately convey the same meaning as the original GI with the same essential features of the label. Subject to this the Registrar will make a determination on this issue on a case by case basis.
We note that as at 19 July 2011, there were 157 GIs registered, of which only five were not from India. (http://www.ipindia.nic.in/girindia/).
Could India clarify whether any business, cooperative or individual from any country may seek registration of a GI in India?
Reply: Section 11(1) of the GI Act provides as follows: "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."
"Business" is not a clear terminology. "Co operative" may qualify as "association of persons". "Individuals" cannot apply for registration of GIs. Please note there must be more than one producer to come within ambit of "producers" stated above.
