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Distinctive Signs for Collective Use

Protection & Promotion of Darjeeling Tea

Contents
India and its GIs Darjeeling Tea A case in point Legal Angle Domestic protection International protection Successful enforcements Challenges ahead Administrative Angle supply chain integrity Commercial Angle strengthening brand equity

India and its GIs


Has a history of more than 5000 years India has GIs in agricultural products, natural products, manufactured products and handicrafts. Prior to 99 GIs protected under common law and Trade Marks Act of 1958 Indian GI law was enacted in 1999 and notified into effect since 15.09.2003 Since then over 30 products have been registered as GIs

Indian Tea Industry


Estates spread over half a million hectares Produces 945 m kg tea 07 Immense geographical spread in a vast country Varied agro-climatic conditions cause distinct variations for each region More than 3 million work force One of the largest Tea economies of the world

Darjeeling

Assam

Nilgiri

Kangra

TEA MAP OF INDIA


DARJEELING

ASSAM

NILGIRI

Darjeeling Tea: A case in point


The history of Darjeeling tea - tea gardens were planted in 1835 Statutorily controlled by Government as part of the Tea industry from 1933 under various enactments culminating in the Tea Act, 1953 The Tea Board, India is vested with the authority to administer all stages of tea cultivation, processing & sale through various orders. Its mandate includes implementing schemes for quality control, increase in productivity, R&D, licensing, promotion, statistics.

Darjeeling Tea
World famous. Vary from large wiry tippy leaves to small tippy leaves. Black , white , green ,oolong and handpicked speciality teas. Cups are light, bright, fresh with mild astringency. Infusions are green. Teas have attractive bloom and have a round, mellow flavour. Famous for the muscatel flavour.

Darjeeling Tea: A case in point

Cultivated only in 87 designated gardens in the Darjeeling district. The Darjeeling tea industry employs over 52000 people on permanent basis Additional 15000 persons engaged during plucking season March to November

Darjeeling Tea: A case in point

60% of the work force is women employed on family basis Income of a garden worker half in the form of cash and the other half by way of perquisites with access to free accommodation, subsidies cereal ration and free medical benefits Mandated by the Plantation Labour Act, Govt of India

Darjeeling Tea: A case in point


Protection of Darjeeling tea has impacted : Better domestic prices use of brokens, fannings, blend corrections Increased awareness of Protection Process amongst trade and industry better adherence to Regulations Better economic health of the industry sick gardens being revived A better quality of life for the plantation worker

GI Protection
The Tea Board has placed emphasis on 3 aspects in the protection of Darjeeling legal angle administrative protection whereby the supply chain integrity of the said GI products is maintained. Being addressed through the upgraded software tracking system and proposed appointment of a ground level inspection agency. promotion and strengthening brand equity.

Legal Angle

DOMESTIC PROTECTION Darjeeling word and logo have been registered as CTM (since 98 and 86 respectively) in India Important features of registration: Can apply only to tea produced in the 87 gardens Processed in the factories located in the gardens

Legal Angle

When tested by tea tasters, it should have the distinctive and naturally occurring organoleptic characteristics of taste, aroma and mouth feel typical of tea cultivated in the said region Any blend of Darjeeling Tea must contain only teas each of which is a blend of Darjeeling tea grown in any of the 87 gardens

Legal Angle

Darjeeling word and logo have been registered as Geographical Indications under the new GI law that came into effect in September 2003 These registrations date back to October 2003. In addition, the Tea Board has also registered the Darjeeling logo as an artistic copyrighted work Both CTM and GI registrations have helped Inspection mechanism put in place

Legal Angle
INTERNATIONAL PROTECTION

Registered in various jurisdictions as a collective mark, certification mark, official mark, trade mark and appellation of origin. -1986 India Certification Mark protection for Darjeeling Logo. -1988 - Benelux Countries (Belgium, Netherlands, Luxembourg) Collective mark protection for DARJEELING logo

Legal Angle
-1988 - International Registration Collective Mark protection for DARJEELING logo (Germany, Austria, Spain, France, Italy, Portugal, Switzerland and former Yugoslavia) - 1989 - Canada - Official Mark protection for DARJEELING Logo. - 1989 - Japan Trademark protection for DARJEELING Logo.

Legal Angle
- 1991 - U.S.A.- Certification Mark protection for DARJEELING Logo. - 1996 - U.K. - Certification Mark protection for DARJEELING Logo. - 1998 - India Certification Mark protection for DARJEELING word. - 1998 - World Wide Watch agency CompuMark appointed to monitor conflicting marks.

Legal Angle

- Pursuant to the watch agency being appointed: Instances of attempted registrations by third parties found Some challenged through oppositions & cancellations and sometimes negotiations. - 1999 - Egypt Trademark protection for Darjeeling Logo

Legal Angle
-2001 - UK - Certification mark protection for DARJEELING word -2002 - USA - Certification mark protection for DARJEELING word -2003 Russia Trade mark registration for DARJEELING word -2003 - India GI application filed for DARJEELING word & logo marks, accepted and published in the first GI Journal in July 2004

Legal Angle
-2004 - India Copyright registration for DARJEELING logo -2005 - Australia Certification Mark protection for DARJEELING word and logo -2005 - Germany Collective Mark protection for DARJEELING word -2005 - Lebanon Collective Mark protection for DARJEELING word & logo

Legal Angle
- 2006 - EU member countries Community collective mark protection for DARJEELING word - 2007 - Japan Regional Collective Mark protection for DARJEELING word - 2007 - EU - Application under EU 510/2006 filed for DARJEELING word as a PGI - 2007 - Taiwan Certification mark protection for DARJEELING word & logo

Legal Angle
SUCCESSFUL ENFORCEMENTS Tea Board has currently legal battles going on against third party usurpers in over 15 jurisdictions of the world Typical strategy used by Tea Board as soon as it receives a watch notice is: Write to the applicant and try for amicable resolution If not complying then file an opposition/ cancellation action as the case may be

Legal Angle

The following are some of the notable successful amicable resolutions: France (1) Use by applicant of mark Plant Asia Grand Vert Th Darjeeling Classes 30, 31 & 32. Tea Board wrote to applicant to withdraw application It was accordingly withdrawn.

Legal Angle
France (2) Application by Comptoir Des Parfumes for DARJEELING for perfumes Tea Board wrote to the applicant Applicant agreed to limit goods to all those goods being made of Darjeeling tea or recalling the scent of Darjeeling tea Filed for amendment TMO in France rejected the same on grounds of descriptiveness

Legal Angle
Germany (1) Registration of domain name www.darjeeling.de by German applicant Damages and costs were claimed Registrant canceled the domain name and signed a declaration Also paid attorneys costs in full Germany (2) German company registering the mark TeaKampagne Darjeeling with Darjeeling logo Applicant settled matter by allowing mark to lapse

Legal Angle

The following are some decisions favoring Tea Board issued by some national courts: France Applicant Dusong adopted the following mark in respect of goods in classes 16, 35 & 41

Legal Angle
While the Tribunal de Grand Instance rejected Tea Boards claim, the Court of Appeal Paris upheld the same The court held that Darjeeling is a GI and the acts of Mr. Dusong were parasitic and amounted to unfair competition Further, the bad faith adoption was writ large from the fact that he used a tea pot device along with the mark The court also imposed heavy costs on Mr. Dusong

Legal Angle
USA DARJEELING v. DARJEELING NOUVEAU Opposition filed by Tea Board before the Trademark Trial and Appellate Board (TTAB) USA Based on its US CTM registrations, Tea Board demanded that the mark Darjeeling Nouveau by Republic of Tea (ROT) be refused ROT filed a counterclaim that Tea Boards CTM registrations be cancelled on alleged grounds of genericness

Legal Angle
While granting Tea Boards claims, TTAB held that: Darjeeling is an inherently distinctive certification trademark indicating geographic origin ROT adduced no evidence to prove claims of genericness and Tea Board had adequate control over the use of the CTM The test for determining genericness of a mark is its primary significance to the relevant public

Challenges ahead
Registrations under varying legal platforms from jurisdiction to jurisdiction Financial implications Delta Lingerie No confusion/deception as resp goods distinct & different with different channels of trade - a question of legal interpretation of obligations under Art 22. Need for higher level of protection Art 23

Challenges ahead
Dilution Principles Applicable Dusong Middle East Lack Of Registration Civil law countries Global Administrative mechanism for supply chain integrity Change management domestic & international

Administrative Angle
Supply Chain Integrity to be maintained at all levels - green leaf made tea 1st level of imports & packaging in importing countries All users of Darjeeling tea licensed importers & exporters (up to first level), packers Account of all teas to be maintained at all stages 2000 Launch of the system of issuance of Certificates of Origin under the Tea (Dist & Export) Control Order for all Darjeeling Export consignments

Certification system
Mechanism to record the following processes Green Leaf # Grown, Harvested, Cultivated and Manufactured Leaf Made tea # Dispatch # Primary Sales # Auction # Private / Exports #
Imports # Secondary Sales

Tea Board issued a Green Leaf Order on Dec 13, 2006 to monitor green leaf grown and purchased by registered tea factories in the Darjeeling GI area. Indo-Nepal boarder checking and involvement of the district administrative machinery

Onsite audits and spot checks


Dedicated EDP Units in Darjeeling and Kolkata On the basis of harmonized procedures and documents specifically developed for the Darjeeling CTM verification activities Transparency of activities and completeness of data will ensure supportive audits versus policing All data/information/material obtained/ generated during the audits will be kept strictly confidential

Onsite audits and spot checks

Appointed an independent certification agency (presently IMO Control) to conduct trade chain audit to check and validate the authenticity of the data collected through the Trade Supply Chain Integrity System. The certification agency is conducting onsite checking and verification of all the data submitted by all entities in the trade chain

Trade Supply Chain Integrity System

Commercial Angle - Promotion


Strengthen brand equity Tea Board has been: Conducting Tea Festivals in foreign jurisdictions Organizing seminars on IPRS and in particular GIs Issuing advertisements in the national and international media promoting Darjeeling Creating awareness

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