Position of GI under the TRIPS Agreement — Intellectual Property Rights I Notes

Position of GI under the TRIPS Agreement

The reason India even has a GI Act is a treaty signed in Marrakesh in 1994. TRIPS made protecting geographical indications a condition of world trade — and set up a two-tier system that India still argues is unfair to products like Basmati.

GIs in TRIPS — Articles 22–24

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 1994 (in force 1 January 1995), under the WTO, deals with geographical indications in Articles 22 to 24. It obliged every member State — including India — to protect GIs, which is why the GI Act, 1999 was enacted.

Article 22 — standard protection for all GIs. Members must give producers the legal means to prevent misleading use of a GI (use that misleads the public about the true origin) and any use amounting to unfair competition. This is the general level of protection, and it applies to all goods.
Article 23 — additional (higher) protection for wines and spirits. For wines and spirits, protection is stronger: use of a GI on wines/spirits not from that place is prohibited even if the true origin is stated or the GI is used with words like “kind”, “type”, “style” or “imitation”. No proof of confusion is needed.
Article 24 — international negotiation and exceptions. Provides for continued negotiation, and permits certain exceptions (e.g. prior good-faith use, generic terms).

India’s position. India has argued for “extension” — extending the higher Article 23 protection to products beyond wines and spirits, such as Basmati rice, Darjeeling tea and Indian handicrafts — because the two-tier system disadvantages developing countries whose flagship GIs are agricultural goods, not wines. India protects such goods domestically through the higher-protection notification power in s.22(2) of the GI Act.

TRIPS Agreement, 1994, Article 22(2): members shall provide the legal means for interested parties to prevent “the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good.”

TRIPS Agreement, 1994, Article 23(1) (paraphrase): for wines and spirits, each member must prevent use of a geographical indication on wines/spirits not originating in that place “even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as ‘kind’, ’type’, ‘style’, ‘imitation’ or the like.”

TRIPS Agreement, 1994, Article 24 (paraphrase): members agree to continue negotiations to increase GI protection, subject to specified exceptions — including continued prior good-faith use and indications that have become generic terms in a member’s territory.

In Simple Terms: TRIPS (1994, in force 1995) made GI protection compulsory for WTO members and is why India passed the GI Act. Article 22 gives all goods basic protection against misleading use; Article 23 gives wines and spirits stronger protection (no need to prove confusion). India wants that higher protection extended to Basmati, Darjeeling and handicrafts too — the “extension” demand.

🧩 WORKED EXAMPLE — why India wants “extension”

Facts. A foreign product is sold as “Basmati-style rice, produce of [another country]”, truthfully stating its origin.

Rule. Under Article 22, such labelling may escape liability if it does not mislead; only Article 23’s higher standard (for wines/spirits) bars it even with the true origin stated.

Apply. Because rice is not a wine/spirit, only Article 22 applies internationally, so the “Basmati-style, produce of X” label may slip through — the gap India seeks to close by extending Article 23.

Conclusion. The example shows why India presses for “extension” of Article 23 protection to Basmati and other GIs.

flowchart TD
    TR["GIs under TRIPS (1994; in force 1995)"]:::root
    TR --> A22["Art. 22 — standard protection, all goods (no misleading use)"]:::leaf
    TR --> A23["Art. 23 — higher protection, wines & spirits (even if origin stated)"]:::leaf
    TR --> A24["Art. 24 — negotiation & exceptions"]:::leaf
    TR --> IND["India's demand: extend Art. 23 to Basmati/Darjeeling/handicrafts"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;

Case Laws

Tea Board, India v ITC Ltd (2011) — Indian GI protection built on the TRIPS-driven GI Act.
Scotch Whisky Association v Golden Bottling Ltd (2006) — reflects the stronger protection spirits enjoy (TRIPS Art. 23 rationale) against origin misuse.

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