Evolution of Protection of Foodstuff GIs

Member states to WTO either continued with their existing system of protection (like the US and Australia) or enacted a sui generis system to comply with TRIPS. However, the selected countries created their respective specific laws to protect GIs after their ratification of TRIPS. Countries like Japan and Indonesia, however, are exceptions, as they extended the protection of GIs under their domestic trademark laws before switching to the sui generis system. TRIPS compliance began immediately in India and Malaysia, which enacted sui generis GI legislations in 1999 and 2000 respectively. Thailand drafted its GI legislation in 2003. In response to its accession to the WTO in 2004, Cambodia framed the procedural laws for registering and protecting GIs in 2007, and later, in 2014, developed a full-fledged substantive law. In the same year, Indonesia developed its own sui generis provisions for GI protection as extended protection under its trademark system. On the other hand, Bangladesh, Singapore, and Japan commenced their sui generis systems in 2013, 2014, and 2015 respectively.Footnote ³¹ Figure 1 shows a timeline of the evolution of foodstuffs protection under the sui generis GI system in the selected countries.

Figure 1. Evolution of foodstuff GI protection in selected Asian countries

Although Article 22 of TRIPS provides a minimum GI protection standard for all goods, the enhanced GI protection under TRIPS was only extended to wines and spirits under Article 23.Footnote ³² Post TRIPS, at the 2001 Doha Ministerial Conference, many countries came together with a more explicit mandate to negotiate for GI protection in TRIPS and the General Council. These countries, called ‘GI friends’,Footnote ³³ discussed among themselves the extension of GI protection under Article 23 of TRIPS to all products. In their view, the GI register under Article 23 of TRIPS should be extended to all products other than wines and spirits. It will be pertinent to note here that the main intention behind this proposal was to protect other traditional products and the communities associated with their production. As TRIPS sets up minimum standards of protection, the protection of other products by the member countries should be available for expansion.

Article 22 of TRIPS does not define ‘goods’; hence the member states have interpreted it as per their respective national policy considerations. In the present study, the selected Asian countries are broadly classified into three categories. Countries in the first group expressly includes foodstuffs in the definition of ‘goods’, such as India, Bangladesh, Indonesia, and Japan. The second group consists of countries like Malaysia and Thailand, which do not expressly include the term ‘foodstuffs’ under the ambit of ‘goods’, but in practice protect processed foodstuffs. Singapore falls into the third and final category, where neither the definition of the term ‘goods’ mentions foodstuffs nor foodstuffs are protected. Obviously, where the scope of protection of foodstuffs as GIs under the law is expressly defined, there is less chance of ambiguity. In such cases, foodstuffs with a proper classification available in the domestic laws will not be left unprotected or overlooked for protection.

By December 2023, Cambodia has registered four local products – GI Kampot pepper, Kampong Speu palm sugar, Mondulkiri wild honey, and Koh Trung pomelo – as well as two foreign products that include Champagne and Scotch Whisky. In some culinary and tourism studies, these are referred to as foodstuffs. Bangladesh has registered nine products, of which Hilsa and Black Tiger prawns can be considered foodstuffs (according to the Indian standards of food GIs registered, comparable to Jhabua Kadaknath black chicken meat from India). However, without a list of classes of goods or a definition of foodstuffs, it is unclear whether they fall under the foodstuff category. Indonesia, which has foodstuffs mentioned in statute, effectively protects the four domestic foodstuffs eel, milk, horse milk, and milkfish, as well as seven foreign foodstuffs (mainly wines and spirits, cheeses, and hams) as GIs.

Article 2(1) of the GI Act of Japan Footnote ³⁴ defines ‘foodstuffs’ as all food and drinks, excluding items that fall under the Liquor Tax Act 1953, or any medicines or quasi-pharmaceutical products. The main objectives of protecting foodstuffs as GIs under this Act are:

1. a) protecting the regional brand and revitalising the rural villages,

2. b) protecting the traditional food culture and practices and ensuring that these practices are continued, and

3. c) consumer welfare.Footnote ³⁵

The Japanese Ministry of Agriculture, Forestry and Fisheries (MAFF) classification of goods for GI protection can be considered as one of the more systematic classifications among the countries. This categorisation expressly distinguishes the protection of processed foodstuffs from vegetables/cereal grains/pulses, fruits, meat, fish, and shellfish. However, the classification of the products is an administrative initiative, and the GI statute does not include such a broad grouping of goods. Currently, Japan has twenty national products registered in the processed foodstuffs class.Footnote ³⁶

The Indian Geographical Indications of Goods (Registration and Protection) Act 1999 (Indian GI Act) expressly includes foodstuffs within the scope of GI protection, as section 2(f)Footnote ³⁷ stipulates that the term ‘goods’ means ‘any agricultural, natural or manufactured goods or any goods of handicraft or of industry and includes foodstuff’. In India, products protected as ‘foodstuffs GI’ mainly belong to Classes 29 and 31 of the Fourth Schedule under the GI Rules 2002.Footnote ³⁸ Unlike Japan, India does not distinguish between processed foodstuffs, meat, fish, and shellfish. The Indian foodstuff GI covers sweet preparations, savoury foods, and raw meat. Seventeen domestic and three foreign products are protected in India under the foodstuff categories. The foreign foodstuffs registered in India mainly include different cheese varieties from Italy.

It is interesting to note that although Malaysia does not include foodstuffs in the scope of protection, in practice it has protected processed foodstuffs like Kek Lapis Sarawak (Sarawak layered cake), Sarawak Sesar Unjur dried shrimp, Sarawak Umai raw fish salad, and Biskut Dan Dan from Sungai Lembing. It also covers foreign products like Parmigiano Reggiano, a type of cheese from Italy. As in Malaysia, Thailand's statute – ie, the Act on Protection of Geographical Indications 2003Footnote ³⁹ – does not explicitly include ‘foodstuffs’ in its sui generis system. However, in practice, the Department of Intellectual Property (the competent authority for GI registration in Thailand) has granted GI protection to various foodstuffs in Thailand. Trang Roast pork, Surat Thani oysters, and Chaiya salted eggs are popular foodstuffs with GI tags. The GI law in Thailand aims for multifaceted benefits of GI registration, like enhancing food quality, opening up market demand for Thai traditional and GI products, and encouraging GI tourism. For example, there is a great demand among tourists for Surat Thani oysters, which are clean and white, with thick, creamy textures. When consumed with lime juice, garlic, fresh chilly, fried onion, and local sprigs, it gives a delicious taste and, in turn, generates enormous revenue for the place.

The foreign GIs protected in Asia are mainly from EU countries. The recent international trade negotiations between the EU and other countries are possibly the main reason for the successful protection of EU GIs in some of the selected countries, such as Japan and Singapore.Footnote ⁴⁰ However, foodstuffs from non-EU countries, like the United Kingdom and Peru, have also acquired their position in the GI registers of selected Asian countries like India. Such implementation will provide a firm ground for the selected countries to obtain better national treatment from their trading partners.Footnote ⁴¹

It is observed that although some countries do not mention foodstuff GIs in the substantive part of the law, in practice the foodstuffs are registered as GIs. Table 1 provides a brief comparative overview of the protection of foodstuffs under the national laws of these jurisdictions.

Table 1. Comparative analysis of the protection of foodstuffs under the GI legislations of the selected countries

Registration is an important aspect of recognising a potential product as GI. Registration of GIs not only acknowledges the product, but also confers legal protection and remedies to the places and communities associated with it to prevent inappropriate use. Understanding the definition of an applicant is the first step in registering a GI. Unlike a trademark, a GI is a community right. Therefore, the GI legislations of the selected countries define ‘applicants’ to endorse the welfare and development of the community, as will be seen below. Once the applicant is determined, the process of filing an application with the relevant authority is commenced by the eligible applicants. The examination, advertisement, opposition (if any), hearing of the opposition, and the final entry in the respective GI registers complete the whole registration process. The procedure is similar in all the selected jurisdictions. However, some countries have different application requirements, mainly in terms of supporting documents, quality control requirements, and the available language options for filing applications. A detailed comparison of the application requirements of the selected jurisdictions is provided in the subsequent sections of this study.

The Varied Nature of the Applicant Category Benefits the Registration of a GI

As GI is a community right, the applicant can be the communities themselves. This is acknowledged by law or by an organisation or governmental agency representing a community. In most of the selected countries, the substantive GI laws are flexible in defining the term ‘applicant’. Associations of producers, legal entities, and organisations representing producers or the communities, including the government institutions, are eligible to file GI applications. However, in countries like India, Thailand, and Malaysia, public authorities or government institutions are the predominant parties filing GI applications.

On the other hand, in countries like Indonesia, Cambodia, and Japan, only the producer's community can file applications. Indian law upholds the interests of producer communities. Hence, in the Indian statute, the applicant must be an association of persons or producers, or any organisation or authority established by or under the law, and must represent the interests of the producer community. For foodstuff GIs in India, it has been observed that the producer's community forms a trust or society and submits the application for registration along with the government institutions, either jointlyFootnote ⁴² or independently. In most of the registered foodstuff GIs, the producers’ welfare associations are the applicants. Foodstuff GIs such as Joynagar Moa and Dharwad Pedha stand as exceptions, where the community had formed the society or trust and filed the application independently. Nonetheless, Odisha Rasagola, Bardhaman Sitabhog, and Bardhaman Mihidana are examples where the government body and the producers’ association jointly applied for registration. Bangladesh's GI laws also provide for an association, institution, or government body representing the community's interests to be an applicant.

The Indonesian GI lawFootnote ⁴³ expressly allows the local government up to the city level and an organisation or association of producers and cooperative agencies established for the producers to apply for registration.Footnote ⁴⁴ An association can be under the leadership of a municipal or city-level government that includes the producers, members from outside the community that may involve a lawyer, academic expert, or other person associated with skills-training institutions.Footnote ⁴⁵ However, government agencies are not directly involved in the registration process as applicants. Unlike Indonesia, the GI laws of India and Bangladesh are silent on the association's constitution.

The definition of ‘applicants’ in the GI law of ThailandFootnote ⁴⁶ is more comprehensive than in other countries. There are three categories of applicants under the GI Act. First, any local governmental agency or organisation with a distinct legal identity that has been responsible for the place of origin of the goods can be an applicant. Second, a natural person or a group of persons can be an applicant, provided that there is a connection with the product's trade and that they are resident in the geographical area of the goods produced. Third, a consumer of the ‘good’ with the GI tag can also be an applicant. Consumers and governmental agencies need to be related to the GI good as users or as those responsible for the product's place of origin, respectively.

The GI statute of Japan states that only a ‘group of producers’ can be the applicant. The statute defines a ‘group of producers’ as a group comprised of producers as direct or indirect members, as provided by the order of the Japanese Ministry of Agriculture, Forestry and Fisheries.Footnote ⁴⁷ Cambodia defines ‘applicants’ expressly as an association,Footnote ⁴⁸ but there is an exception: it recognises a single producer or operator as an association if it is the only one willing to apply for GI registration of the product.Footnote ⁴⁹ The GI Act of SingaporeFootnote ⁵⁰ follows the general definition provided in the laws of the other selected countries (except Malaysia). Producers, associations of producers, or any competent authority can be applicants in Singapore, including a single producer who produces the product in the geographical area specified in the application for registration. The competent authority can only be an applicant if it is responsible for the GI. The Malaysian Act,Footnote ⁵¹ one of the oldest GI legislations amongst the selected countries, does not elaborate on the definition of ‘applicant’. In practice, however, the majority of GIs in Malaysia are filed by government agencies.Footnote ⁵² However, the new Malaysian GI Act promulgated in 2022 states in Article 8(1) that any person can be an applicant.Footnote ⁵³

Differences in Application Requirements for GI Registration

The GI legislations of the selected countries specify the application requirements. The specification of the product and a map of the geographical area of production highlighting the link between the product and the place are two standard documents required. The comparison of the documents relating to the historical proof of origin, the accounts, the statutes, and the association regulations revealed differences from one jurisdiction to another.

The Indian GI lawFootnote ⁵⁴ expressly mentions the supporting documents to be submitted with the application for registration. The requirements include historical proof of the product's origin, specifications, the product's class according to the law, and quality control mechanisms. However, the application form also contains other requirements that go beyond the provisions of the law and which are in consonance with the GI rules, such as the structure of the inspection body and the uniqueness of the product. The uniqueness of the product varies in many ways apart from the product's place of origin. For example, Dharwad Pedha encompasses traditional knowledge safeguarded by the family. Banglar Rasogolla, Bardhaman Sitabhog, and Bardhaman Mihidana exhibit uniqueness through a combination of geo-climatic factors and human craftsmanship. Certain food GIs, like Hyderabad Haleem, Palani Panchamirtham, and Tirupati Laddu carry religious significance. The historical origin of the product and the specification must include the product-place linkage along with its inherent natural and human factors. The application requirements in BangladeshFootnote ⁵⁵ are similar to those in India, but additional information is required. In addition to the historical proof of origin, the application must include the period of usage of the product and details of the product's users.Footnote ⁵⁶ Bangladesh has fewer registered GIs than India, and no registered foodstuffs.

The application requirements for Cambodia are set out in both the procedural law and the substantive part of the GI law. The application requirements in the Cambodian system expressly state that the meaning of the phrase ‘other documents’ in the substantive law should be read on a par with the ministerial declaration.Footnote ⁵⁷

The Japanese GI lawFootnote ⁵⁸ covers a wide range of goods, with processed foodstuffs being a distinct category expressly defined in the substantive law, mirroring similar provisions in the other selected countries. Although Japan has a processed foodstuff category distinct from meat, fish, shellfish, and other consumable goods, it lacks specific application requirements for this category. However, the standards set by MAFF provide some of the general guidelines for the application. Similarly, in the other selected jurisdictions, the applicant is required to submit the characteristic features and specifications of the product. Nonetheless, Japan maintains its inclusive list of characteristics, disallowing the use of abstract terms like ‘delicious’, ‘wonderful’, and ‘very nice’ when describing the quality of the product. Japan requires historical proof of production or origin. In contrast to the other countries, applicants in Japan must provide documentary evidence of a specific number of years of production, which is explicitly stated by MAFF: twenty-five. The twenty-five years of production should be consistent. This consistency includes the maintenance of specific characteristics of the products that distinguish the product from others of the same breed or variety throughout the period. Conversely, in cases of discontinuation, the law strictly stipulates that the applicants (the group of producers) must state the period and the reason for discontinuation in their application.

Unlike Japan, India, and Bangladesh, the Cambodian system is flexible regarding the period of use or historical proof of origin. In Cambodia, documentation requirements include evidence of the product-place link, a product description, information on the production method, and information on the labelling of GI products. The filing process is more straightforward, as the producer's community need not prove the historical linkage of the people to the product and place.Footnote ⁵⁹

In a typical scenario, the community either finds the missing historical data or indicates that the historical data is undocumented. The latter is a hindrance that delays the filing process or discourages the producers of the potential products from applying for registration. In some countries, such as India, it is also a ground for abandoning applications; Hyderabadi Biryani (Application No 168), Agra Petha (Application No 223), and Agra Dalmoth (Application No 222) are some examples of abandoned applications on this ground. Although Cambodia has ratified the Geneva Act of the Lisbon Agreement 2015,Footnote ⁶⁰ it has yet to register a processed foodstuff GI.

Unlike Cambodia, the application requirements of Thailand are part of the substantive law. Documents relating to the sustenance of quality, reputation, or other characteristics of the goods, and the linkage with the geographical origin must be attached to the application. Only a few requirements are stipulated in the statute, the rest being derived from the ministerial regulations.Footnote ⁶¹ However, the regulation is silent on the accompanying documents. Thailand's application requirements are more flexible than those of India, Japan, Cambodia, and Bangladesh. Historical proof of origin, a statement of case including production or manufacturing mechanism, is optional for registration. The Malaysian GI legislation, similar to that of Thailand, provides a general mandate on the application requirements. The details of the applicant, the goods, the geographical area, and the documents proving the quality, reputation, characteristics, and association of the product with its geographical location of origin should be provided.Footnote ⁶² The description of the product, other product characteristics, and proof of origin, the link between the product and the place, and the inspection body are additional information to be submitted.

The application requirements in Indonesia are mentioned in the government regulation.Footnote ⁶³ The provisions relating to application requirements are identical to those in Cambodia. Indonesian law is silent on the submission of historical proof of origin. Nonetheless, there is a requirement to submit product-place links and product characteristics (for foodstuffs).

One of Asia's most recent GI legislations is Singapore's Geographical Indications Act 2014, which regulates the submission of supporting documents similarly to all other countries except Japan and Cambodia. However, the description of quality, reputation, and other characteristics is required. For example, the definition of goods includes the principal physical, microbiological, and chemical characteristics of the goods, as well as their organoleptic features. When describing the goods/product, the applicant should also mention the difference between the potential GI product and other products in the same category. Applicants in Singapore must also demonstrate that the product's reputation is linked to its geographical area of origin through documentary evidence such as specialist books, press reports, or prestigious awards. Singapore also emphasises quality control mechanisms. It is also pertinent to mention that Singapore's local products have yet to be registered as GI. However, Singapore entered into international arrangements with the EU in 2019. Since then, the GIs registered in Singapore have mainly come from the EU, a testament to the collaboration between the two regions.

The language of the filing also holds significance in the application procedure. Some countries, such as Bangladesh, Indonesia, Japan, Cambodia, and Thailand, allow the application to be filed in English and vernacular languages. Filing in the local language makes the process easier and less rigorous, as the producer communities are well versed in it. Documents like historical proof of origin are commonly available in the local language. Translating these documents into the official language or English may present new challenges for the community. In India, the language for filing GI applications is English. This is one of the reasons for delays in the filing and registration process in cases where producers are not familiar with English.Footnote ⁶⁴ Malaysia and Singapore also make it mandatory to apply in English. A brief comparative overview of application requirements in the selected countries is given in Table 2.

Table 2. Comparison of the application requirements in the selected jurisdictions

Quality Control: Structure-Function Differences

One of the essential documentary requirements of the application is to identify the quality control aspects of GI products. Quality control of a GI product starts with the standard set by the producers’ community. Quality is not a pre-defined term; it is negotiated by the producer(s) or the community. The community unanimously develops measures commonly known as CoPs (Community Protocols). A CoP includes a control plan or requirement for an inspection body that will ensure the maintenance of the quality of the GI product. Quality control through a structured CoP serves for healthy competition in the market among the community. It also builds trust among the consumers regarding the premium quality of the product. It is not only linked to the final product, but includes the process as well. Product conformity for foodstuff is checked through various measurable aspects such as composition, shape, taste, and colour. The quality control method starts with defining the quality of the products in convergence with the specifications mentioned in the application for registration. A significant step for quality control is to verify that the CoP is followed by each producer and that the product meets the specification standards. A comparative analysis has been carried out to understand the quality control system in the selected countries, which is illustrated in Figure 2.

Figure 2. Process and impact of quality control of the registered productsFootnote ⁶⁵

Table 3 illustrates the scope and management of quality control in the selected countries. Countries like India, Bangladesh, and Cambodia expressly set out the formation and function of quality control bodies or have established rules governing them. However, the nomenclature varies from country to country. In Japan, for example, such rules are called ‘management rules’.

Table 3. Comparative study on quality control of food GIs in the selected countries

While the formation of an inspection body is not part of the main text of the GI Act 1999 in India, the GI Rules 2002 make it mandatory to form an inspection body.Footnote ⁶⁶ Inspection bodies carry out inspections only in some cases, with community members commonly doing this instead.Footnote ⁶⁷ There is also no particular structure in the law to encourage the formation of an inspection body for Indian foodstuff GIs. For example, Dharwad Pedha, India's first registered foodstuff GI, has a standard and quality committee under a trust (Thakur's Dharwad Pedha Manufacturer's Welfare Trust). The standard and quality committee constitutes the inspection body for Dharwad Pedha, and committee members must be family members. GIs like Banglar Rasogolla and Joynagar Moa have an inspection body comprising representatives of all stakeholders, such as administrative and government representatives, academic experts from reputed institutes, and members of the producer association or communities. The inspection body of Hyderabad Haleem constitutes only one organisation, namely the National Research Centre on Meat, Hyderabad. The primary function of this body is to oversee the adherence to standards of raw materials, especially meat, which is the main ingredient of this foodstuff. The provisions are theoretical and far from practical, unlike the EU GI system where quality control is at the core of GI registration.

BangladeshFootnote ⁶⁸ also emphasises the formation of an inspection body at the time of application. Japan,Footnote ⁶⁹ Cambodia, and MalaysiaFootnote ⁷⁰ emphasise the documents that describe the control plan and technical specifications, respectively, alongside the application for registration. Cambodia's two-tier quality control mechanism, resembling the French system in the EU,Footnote ⁷¹ involves producers carrying out internal control, while external control is executed by a certification body approved by the Ministry of Commerce.Footnote ⁷² The IndonesianFootnote ⁷³ government regulation mandates applicants to form a quality control mechanism and submit it along with the application. As observed in all selected countries except Thailand and Singapore, the quality control body or rules are generally formed during or before the application is filed. The respective statutes of Thailand and Singapore are silent on the quality control mechanism of the GIs, but quality control mechanisms have to be presented along with the application. However, the quality checks start only once the product gets the GI tag. Regrettably, there is no available literature to date on the quality control bodies and their functions in the above-mentioned Asian countries.