OELAW401 –IPR Faculty:Dr.

Bindoo Malviya
UNIT-5

GEOGRAPHICAL INDICATION & TRADITIONAL KNOWLEDGE

Geographical Indication (GI)

Geographical Indications of Goods (Registration and Protection) Act, 1999 and The
Geographical Indications of Goods (Registration and Protection) Rules, 2002 deal with
registration and better protection of geographical indications relating to goods. The primary
purpose of this Act is to provide legal protection to Indian Geographical Indications which in
turn boost exports. Registration of Geographical indication promotes economic prosperity of
producers of goods produced in a geographical territory.

According to the Act, the term ‘geographical indication’ (in relation to goods) means “an
indication which identifies such goods as agricultural goods, natural goods or manufactured
goods as originating, or manufactured in the territory of a country, or a region or locality in
that territory, where a given quality, reputation or other characteristic of such goods is
essentially attributable to its geographical origin and in case where such goods are
manufactured goods, one of the activities of either the production or of processing or
preparation of the goods concerned takes place in such territory, region or locality, as the case
may be”.

Definition :
Geographical Indications of Goods are defined as that aspect of industrial property which
refers to the geographical indication referring to a country or to a place situated therein as
being the country or place of origin of that product.

In addition, the qualities, characteristics or reputation of the product should be essentially due
to the place of origin. Since the qualities depend on the geographical place of production,
there is a clear link between the product and its original place of production.
 It is an indication
 It originates from a definite geographical territory.
 It is used to identify agricultural, foodstuffs, wine and spirit drinks, handicrafts, and
industrial products.
 The manufactured goods should be produced or processed or prepared in that
territory.
 It should have a special quality or reputation or other characteristics

Examples of Indian Geographical Indications -

 Solapur Chaddar
 Solapur Terry Towel
 Basmati Rice
 Darjeeling Tea
 Kanchipuram Silk Saree
 Alphanso Mango
 Nagpur Orange
 Advantages of GI
 GIs are a marketing tool
 Reputation for quality associated with place name used on labels, advertising
 Can serve as source-identifiers for consumers.
 Helps the producers develop consumer loyalty.
 GI-identified products are believed to command higher prices
 Of particular interest to developing countries
 Legal protection and preventing from unauthorized use
 Benefits for farmers and local producers
 Boost the rural development
 Reduces unfair practices of trade
 Boosts the export
 Preserving local culture and resources
 Provides complete information to consumers

How the Geographical indication is protected :

There are four main ways to protect a geographical indication:

 so-called sui generis systems (i.e. special regimes of protection);
 using collective or certification marks;
 methods focusing on business practices, including administrative product approval
schemes; and
 through unfair competition laws.
These approaches involve differences with respect to the conditions for protection or the
scope of protection. On the other hand, two of the modes of protection — namely sui
generis systems and collective or certification mark systems share some common features,
such as the fact that they set up rights for collective use by those who comply with defined
standards.
Broadly speaking geographical indications are protected in different countries and regional
systems through a wide variety of approaches and often using a combination of two or more
of the approaches outlined above. These approaches have been developed in accordance with
different legal traditions and within a framework of individual historical and economic
conditions

Types of geographical indication

Theoretically or otherwise, the geographical indications have been classified into four types:

1.Quality-neutral geographical indication

There is no apparent connection between the distinctive features of the products and the place
of their origin for the quality-neutral geographical indications. It merely demonstrates that the
product is made at the indicated location by the source indication.

2. Qualified geographical indication

The qualified geographical indications establish a link between the attributes or reputation of
the products and the nation, area or place that they are concerned with. A single name is used
to designate or identify these products. These are often referred to as applications of origin.

3. Direct geographical indication

The products of geographical indication tags for the direct geographical indications are
denoted by the names of the geographical places they belong to.
For example, tea from Darjeeling is referred to as Darjeeling tea, and champagne from the
place Champagne is famously known as champagne.

4. Indirect geographical indication

If the public at large believes that the products are identifying a certain geographical origin,
the indirect geographical indications are termed “non-geographical names or symbols”.
For instance, consider the term “feta,” which has no geographical place in Greece but is yet
claimed by Greece to be associated with a region and protected by geographical indication
law.
Another example is the rice variety known as “Basmati,” which has no specific location in
India. The Trade Agreement on Intellectual Property Rights covers “other signs of
geographical significance, whether… composed of words, phrases, symbols or emblematic
images,” in the event that indirect geographic indicators are recognised.

Registration of Geographical Indication

Section 8 of the Act provides that a geographical indication may be registered in respect of
any or all of the goods, comprised in such class of goods as may be classified by the Registrar
and in respect of a definite territory of a country, or a region or locality in that territory, as the
case may be.
Producers dealing with the following three categories of goods can apply:
 Agricultural Goods includes the production, processing, trading or dealing
 Natural Goods includes exploiting, trading or dealing
 Handicrafts or Industrial goods include making, manufacturing, trading or dealing

The Registrar may also classify the goods under in accordance with the International
classification of goods for the purposes of registration of geographical indications and publish
in the prescribed manner in an alphabetical index of classification of goods. There are 34
classes of Goods for the purpose of registration according to WIPO.

Any question arising as to the class within which any goods fall or the definite area in respect
of which the geographical indication is to be registered or where any goods are not specified
in the alphabetical index of goods published shall be determined by the Registrar whose
decision in the matter shall be final.

Types of GI Applications for registration

 Ordinary – For registration of a GI in India.
 Convention – Registration of a GI, which is already recognized in another country.
 Single Class – Includes the registration of goods belonging to a particular class of
goods.
 Multi Class – Includes the registration of goods belonging to multiple classes of
goods.
The registration of a geographical indication is not compulsory; however, it offers better legal
protection to facilitate an action for infringement. The registered proprietor and authorized
users can initiate infringement actions. The authorized users can exercise the exclusive right
to use the geographical indication. The registration of a geographical indication is valid for a
period of 10 years. It can be renewed from time to time for further period of 10 years each. If
a registered geographical indication is not renewed it is liable to be removed from the
register.

Registered Geographical Indication Products in India

1. As of March 2020, India had registered 361 Geographical Indication Products.

2. Registration of GI’s began in India in the year 2004-05 after the enactment of the
above-mentioned law in 2003.
3. The first product to receive the GI tag in India was Darjeeling Tea of West Bengal,
including both the product and the logo.
4. Apart from Darjeeling Tea, other products to receive GI tags during the first year
were Aranmula Kannadi from Kerala, and Pochampalli Ikat from Telangana.
5. The latest products to receive GI tags include Dindigul Locks from Tamil Nadu,
Kandangi Saree from Tamil Nadu, Srivilliputtur Palkova from Tamil Nadu, and Kaji
Nemu from Assam, which is the 361st product to receive the GI tag as of March 2020.
6. Out of the 361 GI products registered in India, 15 products originate from 9 different
countries including Italy, France, UK, USA, Ireland, Mexico, Thailand, Peru,
Portugal.

Benefits of geographical indications

The organizations or companies who register their geographical indications enjoy various
advantages from the registration, including:

1. Registered geographical indications have the exclusive right to access or use G.I.’s
products during the business.
2. Authorized users enjoy the right to sue for infringement.
3. It provides legal protection to geographical signs in India.
4. Prevents unauthorized use of registered geographical indications by others.
5. It provides legal protection to Indian geographical signals which in turn promotes
exports.
6. It promotes the economic prosperity of producers of goods produced in a
geographical area.
7. A registered owner can also approach for legal protection in other WTO member
countries.
8. It provides legal protection to the respective goods in domestic as well as
international markets.
Rights granted to the holders

 Right to sue: The exclusive rights have been granted to the person who is protected
under the Geographical Indication Act and, therefore, can be inherited, gifted, sold,
licensed, entrusted or mortgaged. The holder of geographical Indication has a type of
property that he can use subject to certain conditions and take legal action against a
person who uses his invention without his consent. Does and can receive
compensation against real property.
 The right to grant license to others: The holder has the right to transfer a license or
grant a license or enter into any other arrangement for consideration regarding their
product. A license or assignment must be given in writing and registered with the
Registrar of geographic indications, for it to be valid and legitimate.
 Right to exploit: Authorize user exclusive right to use geographic Indication with
respect to geographic goods for which the geographic Indication is registered.
 Right to get reliefs: Registered Proprietors and authorized Users or Users have the
right to obtain relief in relation to the violation of such geographical Indication.

Who can apply for geographical indication registration

Any person, manufacturer, organization or authority established by or under the law may
apply for the registration of Geographical Indication of their product.

1. The respective Applicant should represent the interests of producers.

2. The Application should be in the prescribed form in writing, which mentions each
and every detail about the product.
3. The Application should be addressed to the Registrar of Geographical Indicators
along with the prescribed fee for the registration of the product.

Procedure for Filing application for registration of Geographical Indication

I. Form and signing of application

1. Every application for the registration of a geographical indication should be made in the
prescribed form (GI-1A to ID) accompanied by the prescribed fee (Rs.5,000).
2. It should be signed by the applicant or his agent.
3. It must be made in triplicate along with three copies of a Statement of Case accompanied
by five additional representations.

II. Fees
1. Fees may be paid in cash or sent by money order or by a bank draft or by a cheque.
2. Bank Drafts or cheques should be crossed and be made payable to the Registrar at the
appropriate office of the Geographical Indication Registry.
3. It should be drawn by a scheduled bank at the place where the appropriate office of the
Geographical Indications Registry is situated.
4. Where a document is filed without fee or with insufficient fee such document will be
deemed to have not been filed.

III. Sizes
1. All applications should be typewritten, lithographed or printed in Hindi or in English.
2. It should in large and legible characters with deep permanent ink upon strong paper, on one
side only.
3. The size should be approximately 33 cms by 20 cms and shall have on the left and part
thereof a margin of not less than 4 centimeters.

IV. Signing of documents

1. In case of -
i. An association of persons or producers shall be signed by the authorized signatory.
ii. A body corporate or any organization or any authority established by or under any law for
the time being in force shall be signed by the Chief Executive, or the Managing Director or
the secretary or other principal officer.
iii. In case of partnership it shall be signed by at least one of the partners.
2. The capacity in which an individual signs a document should be stated below his signature.
3. Signatures should be accompanied by the name of the signatory in English or in Hindi and
in capital letters.

V. Principal place of business in India

1. Every application for registration of a G.I should state the principal place of business in
India.
2. A body corporate should state the full name and nationality of the Board of Directors.
3. Foreign applicants and persons having principal place of business, in their home country
should furnish an address for service in India.
4. In the case of a body corporate or any organization or authority established by or under any
law for the time being in force, the country of incorporation or the nature of registration, if
any as the case may be should be given.

VI. Convention Application should contain the following

1. A certificate by the Registry or competent authority of the Geographical Indications Office
Of the convention country.
2. The particulars of the geographical indication, the country and the date or dates of filing of
the first application.
3. The application must be the applicants’ first application in a convention country for the
same geographical indications and for all or some of the goods.
4. The application must include a statement indicating the filing date of the foreign
application, the convention country where it was filed, the serial number, if available.
VII. Statement of user in applications
An application to register a geographical indication should contain a statement of user along
with an affidavit.

VIII. Content of Application

Every application should be made in the prescribed forms and shall contain the following :
1. A statement as to how the geographical indication serves to designate the goods as
originating from the concerned territory in respect of specific quality, reputation or other
characteristics.
2. The three certified copies of class of goods to which the geographical indication relates.
3. The geographical map of the territory.
4. The particulars of the appearance of the geographical indication words or figurative
elements or both;
5. A statement containing such particulars of the producers of the concerned goods proposed to
be initially resisted. Including a collective reference to all the producers of the goods in respect of
which the application is made.

GI in India
•The Central Government of India has established the Geographical Indications Registry with
all India jurisdiction in chennai
•The GI Act is being administered by the Controller General of Patents, Designs and Trade
Marks ‐ who is the Registrar of Geographical Indications
The application must be filed at the Office of the GI Registry located in Chennai
 Geographical Signification of the Indication
 Class of goods
 Geographical Area
 Details of the appearance
 Particulars of the producers
 Affidavit deposing the Applicant’s right to become the Registrant The Registrar will
have the Application examined.
 Published in the GI journal.
 Notice of Opposition within a maximum period of four months of publication in the
Journal.
 If the Registrar accepts the Application then a certificate of registration issued.

The statement contained in the application should also include the following:

 An affidavit as to how the applicant claim to represent the interest of the association
of persons or producers or any organization or authority established under any law;
 The standard benchmark for the use of the geographical indication or the industry
standard as regards the production, exploitation, making or manufacture of the goods
having specific quality, reputation or other characteristic of such goods that is
essentially attributable to its geographical origin with the detailed description of the
human creativity involved, if any or other characteristic;
 The particulars of the mechanism to ensure that the standards, quality, integrity and
consistency or other special characteristic are maintained by the producers, or
manufacturers of the goods;
 Three certified copies of the map of the territory, region or locality;
 The particulars of special human skill involved or the uniqueness of the geographical
environment or other inherent characteristics associated with the geographical
indication;
 The full name and address of the association of persons or organization or authority
representing the interest of the producers of the concerned goods;
 Particulars of the inspection structure;
 In case of a homonymous indication, the material factors differentiating the
application from the registered geographical indications and particulars of protective
measures adopted.
 Fig: Process of GI Registration

IX. Acknowledgement of receipt of application:

1. Every application of the registration of a geographical indication in respect of any goods
shall, on receipt be acknowledged by the Registrar.
2. The acknowledgement will be by way of return of one of the additional representations
with the official number of the application duly entered thereon

What cannot be registered under GI

Section 9 of the Geographical Indication of Goods (Registration and Protection) Act, 1999
names a few exceptions, which cannot be registered under the GI Registry. These are the
goods which –

1. May cause confusion or deceive the public

2. May be scandalous or obscene in nature
3. Are contrary to the law in force at the time
4. May hurt religious sensibilities
5. Are generic i.e. not unique
6. falsely represent to the persons that the goods originate in another territory, region
or locality, as the case may be

Cancellation of Registration of a GI
If the renewal is not effected within the prescribed or extended time the GI, the
name of the authorized user may be removed from the records.
Infringement of Registered GI :
A person is said to have infringed the GI if he,
1. Uses it as to mislead persons about the geographical origin of the goods
2. Uses any GI in such a manner which constitutes an act of unfair competition including
passing off. The expression “act of unfair competition” means an act of competition
contrary to honest practices in industrial and commercial matters.
3. Uses another GI which falsely represents to the persons that the goods originate in the
locality in respect of which such registered GI indicates.

As the GI is a public property, once registered, the GI Act prohibits any assignment,
liscencing, mortgaging, etc, of such GI. However the death of an authorized user his
successor in title can be brought on record. (Sec. 24)

Remedies for infringement of geographical indication

Remedies relating to infringement of geographical indications are similar to remedies related
to trademark infringement. Remedies which are available for conservation of geographical
indications may be broadly classified into two categories:

(i) Civil remedies

a)Injunction
Injunctions include temporary injunction and permanent injunction. An injunction is granted
for the protection of violations of related items, documents or other evidence in respect of the
subject of the suit. An injunction is granted for restricting the defendant from disposing of or
dealing with his products which may adversely affect plaintiffs’ ability to recover damages,
costs or other pecuniary remedies which may be finally awarded to the plaintiff as
compensation of damage. The aforesaid remedy of injunction is more effective and can
prevent greater harm to the plaintiff. Or other peculiar remedies that may eventually be given
to the plaintiff.

b)Damages
The remedy of damages or account of profits in the form of compensatory damages is
available to prevent infringers from infringement. Damages (other than nominal losses) or
accounts of profits may be ruled out Where the defendant satisfied the court that he was
unaware and there was no reasonable basis for that Assuming that the plaintiff’s geographical
Indication was registered when he was engaged in using it; And when he became aware of
the existence and nature of the geographical Indication, he stopped using it.

c)Delivery of the infringing labels and indications containing products

It is in the court’s discretion to order the infringer to deliver up infringing labels and
indications for destruction by taking relevant circumstances into consideration the court may
or may not order for such remedy. All the mentioned remedies are also available for the
action of passing off. The actions of Passing off are initiated against the infringement of
unregistered geographical indications.

(ii) Criminal Treatment.

Criminal remedies are more effective as compared to civil remedies because the former can
be disposed of quickly. Pendency of civil suits does not justify a stay of the criminal
proceedings which involve the same question. Criminal proceedings directly attack the
violator’s honour and social status In some cases he comes forward for the Settlement of the
matter out of court to save their reputation. Chapter VIII of the Act deals with offences and
punishment for such crimes. The Act has penal provisions for violation of various provisions
related to Geographical indications which are discussed below:

Falsifying and incorrectly applying geographical indications to the goods.

Selling goods to which false geographical indications apply.
Misrepresentation of a geographical indication in registered form.
Improperly describes a place of geographically connected business indication
Registry.
Falsification of entries in the register.
The punishment granted for the infringement offences varies from six months to three years
imprisonment and a fine of not less than rupees fifty thousand but may extend to rupees
two lakh. However, the court for adequate and special reasons in writing may grant lesser
punishment.

World Intellectual Property Organization (WIPO)

The World Intellectual Property Organization (WIPO) is the global forum for intellectual
property services, policy, information and cooperation.

Role of WIPO
It is an international organization dedicated to ensuring the rights of creators and owners of
the intellectual property are protected worldwide, and the inventors and authors are thus
recognized and rewarded for their ingenuity

International treaties: part or entire protection of geographical indications.

WIPO and GI
Relevant treaties administered by WIPO
 Paris Convention
 Madrid Agreement for the Repression of False or Deceptive Indications of Source on
Goods
 Lisbon Agreement
 Protocol Relating to the Madrid Agreement
 Overview of the TRIPS Agreement on the WTO website

Geographical indications and trademarks

Similarities
 GIs are closely related to trademarks; both indicate product origin.
 Both are valid for 10 years

GIs and trademarks differ in two ways:

  A trademark belongs to a particular company; it distinguishes that company’s
products. GIs are shared by all producers in the region identified by the GI.
 GIs attach to a location; trademarks don’t.

Traditional Knowledge :

Traditional Knowledge means “the knowledge possessed by the indigenous people and
communities, in one or more societies and in one or more pattern, with, but not reserved to
art, dance and music, medicines and folk remedies, folk culture, biodiversity, knowledge and
protection of plant varieties, handicrafts, designs, literature”.

Traditional knowledge (TK) is knowledge, know-how, skills and practices that are developed,
sustained and passed on from generation to generation within a community, often forming
part of its cultural or spiritual identity.

While there is not yet an accepted definition of TK at the international level, it can be said
that:
 TK in a general sense embraces the content of knowledge itself as well as traditional
cultural expressions, including distinctive signs and symbols associated with TK.
 TK in the narrow sense refers to knowledge as such, in particular the knowledge resulting
from intellectual activity in a traditional context, and includes know-how, practices, skills,
and innovations.
Traditional knowledge can be found in a wide variety of contexts, including: agricultural,
scientific, technical, ecological and medicinal knowledge as well as biodiversity-related
knowledge.

Traditional knowledge and intellectual property

Innovations based on TK may benefit from patent, trademark, and geographical
indication protection, or be protected as a trade secret or confidential information. However,
traditional knowledge as such - knowledge that has ancient roots and is often oral - is not
protected by conventional intellectual property (IP) systems.

Examples: Yoga, Application of turmeric, neem, Jamun, karela etc. guanyin cao

According to Daniel Gervais traditional knowledge is the knowledge that :

(i) Is traditional only to the extent that its creation and use are part of cultural
traditions of a community –“traditional” therefore does not necessarily mean that
the knowledge is ancient or static;
(ii) Is representative of the cultural values of the people and thus is generally held
collectively; and
(iii) Is not limited to any specific field of technology or the arts

According to one of the reports of WIPO on the subject defines “ traditional knowledge
comprises, tradition-based literary, artistic, or scientific works; performances; inventions;
 scientific discoveries; designs; marks, names, and symbols; undisclosed information; and
all other tradition-based innovations and creations resulting from intellectual activity in
the industrial, scientific, literary or artistic fields”.

Types of Protection

 Defensive protection aims to stop people outside the community from acquiring
intellectual property rights over traditional knowledge.

Defensive protection refers to a set of strategies to ensure that third parties do not gain
illegitimate or unfounded IP rights over TK. These measures include the amendment
of WIPO-administered patent systems (the International Patent Classification system
and the Patent Cooperation Treaty Minimum Documentation). Some countries and
communities are also developing TK databases that may be used as evidence of prior
art to defeat a claim to a patent on such TK. WIPO has developed a toolkit to provide
practical assistance to TK holders on documenting TK.

India, for example, has compiled a searchable database of traditional medicine that
can be used as evidence of prior art by patent examiners when assessing patent
applications. This followed a well-known case in which the US Patent and Trademark
Office granted a patent (later revoked) for the use of turmeric to treat wounds, a
property well known to traditional communities in India and documented in ancient
Sanskrit texts

 Positive protection is the granting of rights that empower communities to promote

their traditional knowledge, control its uses and benefit from its commercial
exploitation. Two aspects of positive protection of TK by IP rights are being explored:
i. Preventing unauthorized use, and
ii..Active exploitation of TK by the originating community itself.

 Some uses of traditional knowledge can be protected through the existing intellectual
property system, and a number of countries have also developed specific legislation.
However, any specific protection afforded under national law may not hold for other
countries, one reason why many indigenous and local communities as well as
governments are pressing for an international legal instrument.

Traditional Knowledge Digital Library TKDL:

The Government of India has also established the Traditional Knowledge Digital Library
(TKDL) for the protection of India Traditional Knowledge.
In June 1999: Recognition of need of creation of Traditional Knowledge (TK) data bases and
need of support to developing countries by Standing Committee on Information Technology
(SCIT) of World Intellectual Property Organization (WIPO). In January, 2001: Cabinet
Committee of Economic Affairs (CCEA's) approval on TKDL Project

The struggle that India had to undergo to nullify the patent granted to turmeric brought to the
forefront the dismal state of documentation of Indian traditional knowledge. Had there been
prior proper documentation, turmeric would not have been granted a patent in the
first place. However, better late than never, the Indian government realized the necessity for
the documentation of the valuable traditional knowledge of the country and in pursuance of
this created the Traditional Knowledge Digital Library- an integrated global bio piracy watch
system that allows for the monitoring of patent applications that seek to patent Indian medical
systems. It serves as a prior art registry and as a defensive mechanism against bio piracy.

The TKDL is a joint effort of the Council of Scientific & Industrial Research and the
Department of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy (AYUSH).
It enables effective detection of attempts to misappropriate this knowledge by third parties
filing applications with patent offices around the world. Currently, TKDL is based on books
of Indian Systems of Medicine, which are available in open domain and can be sourced by
any individual/organization at national/international level. TKDL acts as a bridge between
these books (prior art) and International patent examiners.

At present, while access to the Traditional Knowledge Digital Library is available to nine
International Patent Offices- European Patent Office, United States Patent & Trademark
Office, Japan Patent Office, United Kingdom Patent Office, Canadian Intellectual Property
Office, German Patent Office, Intellectual Property Australia, Indian Patent Office and Chile
Patent Office- by way of the TKDL Access (Non-Disclosure) Agreement, talks are underway
with Russia and Malaysia.

TKDL is proving to be an effective deterrent against bio-piracy and has been recognized
internationally as a unique effort. TKDL has set a benchmark in TK protection around the
world, particularly in TK-rich countries, by demonstrating the advantages of proactive action
and the power of strong deterrence. The key here is preventing the grant of wrong patents by
ensuring access to TK related prior art for patent examiners without restricting the use of
traditional knowledge.

However, there has been a drawback to the TKDL. After the setting up of the TKDL, India
has challenged several claims of patent across the world. However, concerns have arisen as to
whether the money spent by India to sustain the TKDL is worthwhile. Several other countries
such as South Korea have a system similar to that of the TKDL, yet spend a fraction of the
amount spent by India.

Further, with the TKDL available only to defend India’s traditional knowledge and not being
available for further research, much is left to be desired.
Nonetheless, the establishment of the Traditional Knowledge Digital Library has indeed
demonstrated the need to protect a nation’s traditional knowledge and the advantages of
proactive action. It has also paved the way for the efforts of other countries to protect their
traditional knowledge.

India‟s TKDL, a collaborative project between the Council of Scientific and Industrial
Research (CSIR), and the Department of AYUSH, is a home-grown effort to ensure patent
offices around the world do not grant patents for applications founded on India‟s wealth of
age-old TK.
 Cases on wound healing properties of turmeric, and the antifungal properties of neem
acted as stimulants for the formation of TKDL.
The Neem Biopiracy Case “
Neem tree (Azadirachta indica), the tree of miracles.
Ayurvedic literature -„Neem bark is cool, bitter, acrid and refrigerant
Attractive broad-leaved, evergreen, up to 30m tall.Trunk is 30-80 cm in diameter.
Essential oils, fatty acids, amino acids and chemicals such as nimbin, nimbinin and nimbidin.
Seeds ,leaves oil, bark , roots have medicinal properties.
Uses: Tiredness, cough, fever, loss of appetite, worm infestation, vomiting, skin diseases and
diabetes.
Originates from the Indian subcontinent and now grows in the dry regions of more than 50
tropical countries.
Neem tree (Azadirachta indica), the tree of miracles. Ayurvedic literature -„Neem bark is
cool, bitter, acrid and refrigerant
Attractive broad-leaved, evergreen, up to 30m tall.Trunk is 30-80 cm n diameter.
Used for centuries by local communities in agriculture as an insect and pest repellent, in
human and veterinary medicine, toiletries and cosmetics.
Since the 1980s, many neem related process and products have been patented in Japan, USA
and European countries.
USA (54) , Japan (35), Australia (23), India (14). In India more than 53 patent applications
are pending.
The India and United States were involved in a biopiracy dispute.
In 1994, European Patent Office (EPO) granted a patent (EPO patent No.436257) to the
US Corporation W.R. Grace Company and US Department of Agriculture.
Neem-based bio-pesticides Neemix, for use on food crops
Granting of a patent to a neem-based crop fungicide by the European Patent Office (EPO).
In 2000 EPO revoked patent following an appeal by India.
Vandana Shiva of the Research Foundation for Science, Technology and
Ecology(RFSTE) said "It was pure and simple piracy. The oil from neem has been
used traditionally by farmers to prevent fungus. It was neither a novel idea nor was it
invented“.
It got support of the International Federation of Organic Agriculture Movements (IFOAM)
and green euro-deputies.
The backbone of the Indian argument, presented before the EPO by Professor U P Singh, an
agricultural scientist at the Benaras Hindu University, was that the fungicidal qualities of the
neem tree - a traditional plant known for its medicinal properties – and its use has been
known in India for over 2,000 years.
EPO agreed that the process for which the patent had been granted had actually been in use in
India for many years.
Calling the EPO decision an historic one, Shiva said: "Patenting is one of the ways through
which traditional users can be threatened. The free tree will stay free .
The Turmeric Patent Dispute :
A tropical herb grown in East India. powdered product made from the rhizomes of its
flowers has several popular uses worldwide. Turmeric powder has a distinctive deep yellow
color and bitter taste. Used as a dye, a cooking ingredient, and a litmus in a chemical test, and
has medicinal uses.

In the mid-1990s, turmeric became the subject of a patent dispute. A U.S. patent (no.5,
401,504) on turmeric was awarded to the University of Mississippi Medical Center in 1995,
specifically for the "use of turmeric in wound healing." Two years later, a complaint was
filed by India's Council of Scientific and Industrial Research(CSIR).

In India, where turmeric has been used medicinally for thousands of years, concerns grew
about the economically and socially damaging impact of this legal biopiracy.
CSIR argued that turmeric has been used for thousands of years for healing wounds and
rashes and therefore its medicinal use was not a novel invention.
Their claim was supported by documentary evidence of traditional knowledge, including
ancient Sanskrit text and a paper published in 1953 in the Journal of the Indian Medical
Association.

United States Patent and Trademark Office (US PTO) investigated the validity of this patent.
In 1997, despite an appeal by the patent holders, the US PTO upheld the CSIR objections and
cancelled the patent. The turmeric case was a landmark judgment case as it was for the first
time that a patent based on the traditional knowledge of a developing country was
successfully challenged.

Case study – Patent issue Jamun, Brinjal, and karela

The use of „karela, jamun, and brinjal for control of diabetes is common knowledge and
everyday practice in India. The use of these substances in the treatment of diabetes dates back
many centuries in India and is mentioned in several ancient texts on healing such as “Wealth
of India”', the “Compendium of Indian Medicinal Plants” and the “Treatise on Indian
Medicinal Plants”.
A patent number 5,900,240 was granted recently to Cromak Research Inc based in New
Jersey to a team comprising two non-resident Indian scientists Onkar S Tomer and Kripanath
Borah, and their colleague Peter Glomski. The American patent was granted on an edible
composition comprising a mixture of at least two herbs selected from the group consisting of
jamun, bitter gourd or bitter melon (Karela), and eggplant (brinjal) .

The herbal mixtures have been cited as dietary supplements and are claimed to be especially
useful for lowering the glucose level in blood among those suffering from diabetes.
The patent was challenged on the ground of prior art. However, Article 102 of the U.S. Patent
Law, which defines prior art, does not recognise technologies and methods in use in other
countries as prior art. If knowledge is new for the U.S., it is novel, even if it is part of an
ancient tradition of other cultures and countries.. Because of this, the Jamun could be
patented in the USA. But it does created hue and cry in India for such a patent as it was
considered to be a biopiracy i.e. theft of Indian TK.

Some more examples on TK :

1.Hoodia Cactus and San Tribe of Africa- This plant is used as an appetite suppressant forms
the part of the TK of San people.

2. Ayhuasca meaning wine of the soul. Is a ceremonial drink prepared by the tribes in the
Amazon Basin from bark of the tree named Banisteriopsis Caapi . It is also used in the
process of treatment of certain ailments.

4. Maca and the tribes of Peru- It is a plant of radish and mustard family believed to
have been first domesticated in Junin(Peru) 1300 to 2000 years ago. It is used as
 health drink with or without fruits and vegetables to improve fertility and sexual
functions.
5. Jeevani and Kani Tribe in Kerala: Jeevani is a medicinal plant used as an anti stress,
anti fungal, revitalize and immune- enhancer drug by Kani Tribals. Another plant
called Arogyapaach for its medicinal effects since time immemorial.

Intellectual property law can help to protect and promote your culture

The following are some examples of IPR initiatives for protection of Traditional Knowledge

1. An Aboriginal community in Australia has gone into partnership with a university to

develop painkilling drugs based on herbal treatments known to the community for
many years. They have protected the new drugs through a patent.
2. Traditional farmers in Peru grow a particular type of potato, which is famous for its
quality and taste. They have started using a trademark to help promote their potatoes,
helping them secure higher prices.
3. Copyright law in Ghana has been reformed to stop companies copying the distinctive
fabric designs developed by certain ethnic groups.

These are just three examples of the ways in which indigenous peoples and communities can
benefit from the intellectual property system. This is not to suggest that intellectual property
law meets all the needs of indigenous peoples and local communities. But, if strategically
used, the intellectual property system can be crucial. By using the intellectual property
system, you may be able to prevent other people, companies or organizations from exploiting
your traditional knowledge

CONCLUSION
Globalization have caused misuse of traditional knowledge for monopolistic rights and the
ultimate profit from its sales. So there is a strict need of awareness for the traditional
procedures and knowledge. Documentation activities undertaken by developing countries like
India are worth recognition. Therefore the protection, conservation and preservation of the
traditional knowledge and its practice and culture should be of major concern.In order to
prevent the misuse by unauthorized parties of traditional knowledge and promotion of its use
and its importance in development.

Negotiations on an international legal instrument are taking place within the WIPO
Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore. In some countries, sui generis legislation has been developed
specifically to address the positive protection of TK. In addition, providers and users may
also enter into contractual agreements and/or use existing IP systems of protection. However
A major legal problem is that there is a lack of a unified understanding of 'prior art' as a result
of which the data documented by TKDL is not accepted as prior art by the United States
Patent Office.

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