Author: Vidhi Mehta, Maharaja Sayajirao University

Geographical indication is a name or a sign used to protect the products retaining specific qualities, characteristics; linked to a particular place. There is a specific act made to protect such goods, possessing such unique qualities, the act is Geographical Indications of Goods (Registration and Protection) Act, 1999. There are various examples which are well known; such as the Darjeeling Tea, Kanjeevaram Silk Saree, Kolhapuri Chappal, and many more. And from such well-known examples; lies another GI protected handicraft known as; Kullu Shawl.

This is a hand-woven shawl that comes from Kullu valley in Himachal Pradesh. It is known for its distinctive patterns, design, and borders. It has earned both national, and international recognition. Therefore, due to such significant recognition, there has been a misuse of the name “Kullu Shawl”, by various other manufacturers too. This case study widely examines the issues regarding the infringement, the GI protection framework, and the challenges faced by the original owners. The main barrier faced by the traditional artisans is that the shawl is being sold in Punjab, and Ludhiana in the same name, therefore it is harming their status, and there is an infringement of the tag. Hence, the case study will address all the issues, and concerns faced by them.

Keywords:

Geographical Indications of Goods (Registration and Protection) Act, Kullu Shawl, GI infringement, TRIPS agreement, traditional artisans.

The Kullu Shawls are handmade using wool, pashmina, and other such delicate natural fibers. Its origin fragments to Kullu valley, in the Himalayas of Himachal Pradesh. The weaving has been carried out since a long time, and it has been passed down from the traditional artisans. The main attraction is its vibrant colors, natural fibers, sheep wool, and such other fibers. Gradually, its commercialization increased, and its widespread increased nationally, as well as internationally, therefore it was given a recognition, and it was registered under Geographical Indications of Goods (Registration and Protection) Act, 1999. The main aim of giving the tag is to protect its authenticity, and prevent the misuse by unauthorized weavers and consumers (both).

Despite this tag, the weavers in Punjab and Ludhiana, continued weaving and selling the shawl in the name of Kullu Shawl, branding themselves as authentic. Which in turn gave a rise to infringement disputes. The GI tag’s framework was questioned, questions on its effectiveness, and authenticity also arose. Accordingly, the weavers faced severe fiscal burden.

The Kullu Shawl was first produced in Himachal Pradesh, which was registered under the GI Act in 2000’s. The traditional weavers, and artisans argued about the shawl sold outside in the market, in the name of Kullu Shawl, by various other weavers. And, the shawl sold outside was significantly cheaper than the hand-woven shawl, which created unfair practices, due to which the artisans were economically harmed.

The Kullu Weavers Association (KSWA), is a group of people with primary stakeholders, who took the effort to register the shawl under the GI Act. Yet, when this issue arose, they were unable to take action. Instead, the association was busy finding the difference between both; the original weavers, and the others. Due to this lethargic process, the traditional weavers were facing difficulties, both economically, and socially. There are also genuine concerns for the authenticity, and usage of the GI logo.

• Whether the factory-made shawls constitute the violation, and infringement of the GI Act?

• Whether the sale of such fake goods violate the rights of the traditional, and authorized owners?

• Whether the prevailing legal framework, or statutory laws are sufficient, and adequate to protect the traditional artisans or not?

• What remedies, or injunction, or penalties are suitable for such unauthorized weavers?

• Whether inadequate recognition of the GI logo in the market by the consumers creates a gap, which allows such fake goods to be sold in the market?

International Framework-

The global framework governing the GI protection is Trade Related Aspects of Intellectual Property Rights (TRIPS) , which is managed by the World Trade Organization (WTO) . Under which Articles ranging from 22-24, under Part- II Section 3, are for the protection of the GI tag. As mentioned above Darjeeling Tea, Kullu Shawl, and any such item is protected under this. India has bilateral agreements, and treaties for recognition of such items.

Domestic Framework-

The law that deals with this issue is Geographical Indications of Goods (Registration and Protection) Act, 1999. This law has parts such as; Section 11, 21, 22, 67, 68 that decide how GI tag works. Encompassing from its registration, to its rights, protection, infringement, and penalties for falsification. Therefore, if anyone misuses, and sells shawls, in the name of Kullu Shawl, then penalty is prescribed, along with injunction remedies.

Passing Off Principles-

Apart from the domestic, and international laws, such principles are general rules for the protection of GI tag. Any aggrieved person is allowed to lodge an action of passing off, for protection. It protects the goodwill, and reputation of the person/s and the product/s both.

The production of shawls in Punjab, and Ludhiana, and selling them as "Kullu Shawls" clearly violates Section 22 of the GI Act, 1999. This section prohibits unauthorized individuals from using a registered GI in a way that could mislead consumers about its geographical origin.

The main issue is deceiving the consumers. Tourists and consumers who do not know the difference between handwoven and power loom products are often tricked into buying imitations from Ludhiana. The economic impact is serious; traditional handloom weaving requires significant labor, skill, and time. This means that manufacturers who copy Kullu designs without using the name might avoid responsibility, creating a need for additional protection through copyright, design law, or collective trademarks.

The facts justify a standard passing-off action even in the absence of the GI Act. Over the years, the Kullu Shawl moniker has gained considerable favor with the KSWA, and the weaving community. Sellers of Ludhiana goods exploit this kindness by misrepresenting themselves as Kullu Shawls. In line with the guidelines set forth in Scotch Whisky Association vs Pravara Sahakar, 1991 , this results in a deterioration in the craft's viability, a loss of market share, and lower prices.

The Kullu Shawl dispute is part of wider problems associated with the enforcement of GI rights in India. As seen in the case of Tea Board India vs ITC Limited, 2011 decided by the Calcutta High Court, boundaries were clearly defined when it was held that "Darjeeling Lounge" was not an infringement of a registered GI right. Likewise, in the case of Kashmir Pashmina , despite widespread adulteration, the GI tag has failed to curb the problem. In the same way, while the Kullu Shawl controversy may not lead to any landmark judgment, it certainly is a good example of the enforcement of GI rights in practice.

The Act enables the courts to grant injunction, remedies for damages, impose penalties (both civil and criminal). The Himachal Pradesh government also spread awareness amongst the traditional weavers, and also mentioned about the remedies, and rights which can be held by them. Also, the Himachal Pradesh government declared actions against the ones who were selling, and producing the shawl in the name of Kullu Shawl. But such efforts made by the government weren’t enough from them to stop the production, and selling.

All the measures by the government, and all the statutory laws, as well as the rules made for the protection of the GI tag, still aren’t enough. Therefore, a proper legal framework has to be constituted, stringent actions have to be taken against the infringement, more consumer awareness has to be made, more policy, and rules have to be implemented fair and square, and much more.

If such measures are actively implemented, and will be carried out with seriousness then the traditional weavers will be protected from financial losses, and the consumers will also be able to use the authentic product, as well as they will be able to make out a difference between both. Therefore, such efforts would help increase the effectiveness, and efficiency of the GI framework.

• Geographical Indications of Goods (Registration and Protection) Act, No. 48 of 1999, India Code (1999).

• Agreement on Trade-Related Aspects of Intellectual Property Rights art. 22, Apr. 15, 1994, 1869 U.N.T.S. 299.

• Kullu Shawls of Himachal as a Geographical Indicator, Hill Post (Apr. 24, 2009).

• Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 U.N.T.S. 154.

• Tea Board, India v. ITC Ltd., 2011 SCC OnLine Cal 1083 (India).

• Scotch Whisky Ass'n v. Pravara Sahakar Shakar Karkhana Ltd., A.I.R. 1992 Bom. 294 (India).