AI Structured Summary
Not yet generated for this judgment
Judgment
Prabha Sridevan, J
1 . Payyannur is a territory in the Kannur District of Kerala. The product for which Geographical Indication was granted is a Finger Ring made of
gold and silver which is totally hand made. This appeal is against the order passed on 14.07.2009 in an opposition proceedings No.GIR/TOP 2/347/09
granting G.I. registration of Payyannur Pavithra Ring in the name of respondent. The appellant is a third party to the above proceedings. By virtue of
the order passed by the Hon'ble Madras High Court in W.P.897/2010, he has filed this appeal. The 1st respondent has been granted the G.I.
registration. The applicant/1st respondent claimed that it represents the interests of producers of the Ring and prayed for granting GI. The application
was made by Payyannur Pavithra Ring Artisans & Development Society and it was signed by the President for Payyannur Pavithra Ring Artisans &
Development Society. The applicant Payyannur Pavithra Ring Artisans and Development Society claimed to be a registered association of the
producers and traders of the ring. The Geographical Indication identifies and indicates the manufactured goods as originating in Payyannur.
2 . One K. Balakrishnan, the Proprietor of Lakshmi Jewellery filed his opposition. According to him, the Pavithra Ring came into existence not in 1792
but in 1794. It was not Kelappan Perumthattan who made the ring first but Mavichery Thekke Veetil Chandu Velichapatan who made it. The rings
were not made by the members of the former family but by the latter. Among the applicant's members the only person who knows how to make the
ring is P. Venugopalan and he does not belong to the Chuvattu Valappil family but he belongs to Padoli House family. The others are businessmen
dealing in gold. Thekke Veetil Narayanan Karnavar is a descendant of Mavichery family. Many important persons like Shri Rajagopal, Shri Mata
Amruthanandmayi, Sri Ravishankar and others have been supplied with the rings. Many goldsmiths know the workmanship. The society is not
competent to apply for sole ownership. It is a devotional work and cannot be commercialized nor patented. It has to be first dedicated to Lord
Subrahmanya before anybody's use. It is against Hindu Dharma to commercialize or monopolize it. On the above basis this opposition was filed in
2005.
3 . On 14.07.2009, the Geographical Indication Registry dismissed the opposition filed by Shri K. Balakrishnan and the Geographical Indication
proceeded to registration. This is the order impugned herein.
4 . The appellant filed W.P. No. 897 of 2010 for Writ of Certiorarified Mandamus to quash the order referred to above and to restrain the Registrar
from proceeding further with the respondent's application.
One T.K. Shyamsunder, Proprietor of Lakshmi Jewellery who is also the President of the 1st respondent was a party in this writ petition. The
Division Bench of the Hon'ble Madras High Court by the order dated 07.04.2010 dismissed the Writ Petition, since the appellant could exhaust its
alternative remedy by filing an appeal before this Board. Therefore this appeal has been filed.
6 . On 24.11.2011, the counsel for the appellant pressed for stay. We were of the opinion that no ground has been made out for grant of stay but we
felt that since Payyannur is a small area in the State of Kerala, the artisans may not be aware of the proceedings. Therefore the appellant was
directed to effect publication in Mathrubhumi Daily News Paper.
Several affidavits were received thereafter and an Intervening Petition M.P.1/2012 was also filed by one Shri C.P.K. Raghavan, who claimed to be
the Secretary of Sree Choovatta Valappil Tharavad Dharmadaiva Paripalana Trust formed by the Members of the Tharavad. According to him, the
Geographical Indication registration ought not to have been given to the respondent society who has no connection with the artisans of Payyannur
Pavithra Ring or the Choovatta Valappil Tharavad. It is also alleged that the society obtained the GI registration by suppression and fabrication of
documents and that the grant seriously affects the effective livelihood of the artisans.
The contents of the affidavits are briefly as follows:
1 . P. Venu, the Goldsmith artisan, according to him, he is aware of the proceedings and grant of GI in favour of the respondent society would protect
him. He is the member of the respondent society. He is a resident of Padoli House at Payyannur. It is relevant to note that the opponent
K.Balakrishnan had referred to this artisan as the only person who knows about the manufacture of the rings.
2 . C.V. Krishnan is also a goldsmith artisan who has also supported the respondent.
K. Balakrishnan was the opponent who had not filed the appeal. According to him, there were disputes regarding the right of ownership of Pavithra
Ring. He submitted that there were many litigations at Payyannur Courts, regarding the right of ownership of Pavithra Ring which the Hon'ble Courts
have dismissed. Therefore this is barred by Section 9(a), (d) & (e) of the Geographical Indication Act. He prayed that the appeal may be allowed.
There is another affidavit filed by the petitioner in the intervening petition - C. P.K. Raghavan.
5 . C.V. Jayachandran belonging to Choovatta Valappil Tharawad has also filed an affidavit opposing the grant claiming that there is no such society.
6 . C.V. Rajeevan, according to him, the applicant has been formed for the vested interests of T.K. Shyamsunder and Lakshmi Jewellery, Payyannur.
C.V. Dwijith, he is an artist. According to him the application submitted by T.K. Shyamsunder who is not a member of Chuvvatta Valappil Family
must be rejected.
C.V. Lakshmi has also opposed the grant in favour of the respondent.
9 . C.V. Chandrahasan has also opposed the grant in favour of the respondent.
C.V. Dwija has also opposed the grant in favour of the respondent.
The intervening petitioner has filed some photographs and it is alleged that these photographs show that the respondent is misusing the registration
to secure benefit for his Lakshmi Jewellery. The intervening petition was allowed.
The history of this ring is broadly accepted by all. According to them, a specific link exists between the product and the said place of origin. The
Pavithram is a ring made of Durba grass. This Pavithra Ring is made of gold and is unique for its 'Pavithra Knot' at the centre of the ring. There are
three lines on the ring which represent the three 'Nadis' viz. Ida, Pingala and Sushumna. There are three lines on each side of the Pavithra Knot and
seven Buds on each line. Historically, only persons belonging to the Brahmin community while performing obsequies are said to have worn the
Pavithra Mothiram made of Durba grass.
1 1 . In Payyannur, there was a Sree Subrahmanya Swami Temple which was destroyed during the reign of Tippu Sultan. Thereafter, it was
renovated in the Malayalam year 1011. In the same year, it was consecrated under the guidance of Sri Tharananalloor Namboodiripad of Irinjalakuda.
This Thanthri was a young boy of the Tharananalloor Illom, since there was no adult male member then available in their family. It was he who
entrusted the task of making a ring in gold to late Kelappan Perumthattan who belonged to the Chovatta Valappil family in Payyannur, since the
Thanthri had practical difficulties in making a ring of Durba grass. Ever since then this ring has been produced by the artisans of Payyannur under the
guidance of the Chovatta Valappil family.
The rings are made of specific sizes with corresponding weights. This delicate balance between the specified size and weight and the unique
craftsmanship, in the making of the ring require great expertise and dedication and the artisan is totally isolated for a minimum period of three days to
complete the ring.
The name of the territory Payyanur comes from the words the Oor of the Payyan i.e. The land of Lord Subrahmanya. It is believed that the
Pavithra Knot helps to activate the Kundalini sakthi. The three lines represent the Trinity of Brahma, Vishnu and Shiva. The seven buds stand for the
seven rishis, the flattened part adjacent to the pavithra knot is the Planet Sun and a similar one at the end of same line is Planet Moon. The whole
knots at the end are four Vedas. These are the special features of this Pavithra Ring.
14 . The Learned Counsel for the appellant Mr. Balachandran submitted that the Geographical Indication application was made in the name of
Payyannur Pavithra Ring Artisans Society on 23.02.2004. On that date, the applicant ought to have been a legal entity but it is not a body recognized
by the law. It came into existence on 29.09.2004. According to him, the Consultative Group had pre-decided to grant the Geographical Indication in
favour of the respondent. He submitted that at this stage, the name of the Society is given as Payyannur Pavithra Ring Artisans and Development
Society which is different from the name of the appellant. In any event, the members are not even artisans.
15 . On 13.02.2004, the GI Registry has issued the Examination Report. Learned Counsel submitted that out of seven members of the society only two
are artisans and there is nothing to show how they effectively represented the producers. The appellant had obtained registration of the trademark
Payyannur Pavithra Mothiram in its name. The respondent has moved for rectification of this mark. The appellant claimed that it had honestly adopted
by Choovatta Valappil Perumthattan in 1945 and according to them, the Rectification Petition filed by the respondent herein was malafide and in fact it
was a bogus society. Learned Counsel submitted that their trade mark was used much prior to the Geographical Indication. There was no effort made
by the Consultative Group or by the Geographical Indication Registrar to verify the activities of the respondent. According to the Learned Counsel the
respondent is a malfunctioning society and that on the relevant date the Consultative Group did not have a Quorum.
1 6 . Learned Counsel for the respondent Mr. P.V.S. Giridhar submitted that the applicant was a registered society. There were no malafides in the
application. It was filed only to advance the interest of the producers. He submitted that the appellant has obtained a trademark registration malafide
and the rectification petition has been filed with unclean hands. He submitted that the definition of """"producers"" in the Act is wide enough to include
the business community. He submitted that all the artisans in Payyannur were welcome to become members of the applicant society. He submitted
that in any case, the artisans could always file an application under S. 17 to get themselves registered as """"authorized users."""" He submitted that the
applicant was willing to abide by any directions that this Board may issue to protect the interest of the G.I. He referred to the following decisions:
MANU/WB/0387/2001 - loom field Co. Ltd. Vs. Bagaria Business (P) Ltd. - It was held that Bloomfield tea indicates the tea of a geographical
place and plaintiff cannot claim any exclusive right to the same.
MANU/IC/009/2011 - Bisleri International Pvt. Ltd. Vs. Dr. Dadi Balsara - It was held that the words Himalayan and Himalaya designating the
geographical origin. There is no distinctive character and are incapable of even acquiring secondary meaning
MANU/WB/0105/1968 - Imperial Tobacco Co. of India Ltd. Vs. Registrar of Trade Marks and Anr. - It was held that the trade mark Simla is
neither an invented word nor a word having a dictionary meaning. It is well known hill station in India. So the geographic significance is inescapable
and trademark lacks distinctiveness.
4 . 2010 ETMR 43 - It was held that the word Palomar identifies a Palomar vineyard and there is no ground to grant trade mark for wines containing
geographical indications.
5 . 80 US 311 - SC 1872 Canal Company Vs. Clark - It was held that Lackawanna Coal was denied exclusive right.
6 . ECJ Judgment dated 04.03.1999 Case - 87/97 - Gorgonzola is a Geographical Indication and the trade mark Cambozola was objected and the
objection was sustained.
The Learned Counsel for the intervener, Mr. P.P. Sandeep Kumar submitted that the respondent society has obtained the registration without the
knowledge of the Tharavad and the artisans and that the G.I. registration given to the society will seriously affect the life of the real artisans and the
rights of the above Tharavad members. According to him only the members of his Tharavad were traditionally making this ring. He prayed that the
appeal should be allowed
1 8 . Section 2(e) of The Geographical Indications of Goods (Registration and Protection) Act, 1999, (Act in short) defines 'Geographical Indication',
In relation to the goods in this case, namely the Ring, it means an indication which identifies that the Ring has been manufactured in Payyannur or
where the production of the Ring takes place. Section 2(k)(iii) pertains to handicraft or industrial goods. In this case, the Rings are made by the
goldsmiths of that area allegedly according to the tradition handed down, over generations and the word ""producer"" means any person ""who makes or
manufactures the goods"". ""The registered proprietor"" in relation to Geographical Indication means any association of persons or of producers or any
organizations for the time being entered in the register as proprietor of the Geographical Indications.
Chapter III deals with the Procedure and Duration for Registration. The applicant u/s. 11 may be any association of persons or producers or any
organisation or authority established by or under any law for the time being in force which represents the interest of the producers of the concerned
goods, who are desirous of registering a Geographical Indication in relation to such goods. It is clear from the definition section that the production of
the ring should take place within the geographical region called Payyannur.
Section 11(2) specifies the particulars to be furnished in the application under Section 11. Section 11(2)(e) requires a statement ""containing such
particulars of the producers of the concerned goods, proposed to be initially registered with the registration of the Geographical Indication"". The Act
clearly requires the submission of the particulars of the producers. At any rate, the application should show that the association represents the interest
of the producers of the Pavithra Ring who are desirous of the registration of Geographical Indication. Therefore the least that the applicant should
have done is to name those producers, whether they make or manufacture the Ring or whether they trade or deal in the making or manufacture of
Rings that they are such producers and also that such production takes place in Payyannur. This would appear to us to be a sine qua non for
entertaining the application for registration. The Objects and Reasons for enacting this law show that ""At present there is no specific law governing
geographical indications of goods in the country which could adequately protect the interest of the producers of such goods. Exclusion of unauthorized
persons from misusing the geographical indications would serve to protect consumers from deception and also promote goods bearing Indian
geographical indications in the export market."" Furnishing such particulars in the application would advance the object of the Act and advance the
object of excluding unauthorized persons.
It was submitted that the members of the society were not even artisans, they were businessmen. Indeed the application shows that of the seven
original members of the society, only four are artisans and three are not. But the definition of the word 'producer' is wide and includes any person
who trades or deals in such production, exploitation making or manufacturing"" of the goods.
P. Venu is one of the seven members of the Payyannur Pavithra Ring Artisans and Development Society. His affidavit has earlier been referred
to. Unless the association of persons indicates clearly that they represent the interest of producers, it is not entitled to be registered as the proprietor of
the Geographical Indication.
When the matter came up before us in appeal, we felt that the actual artisans may not even know that an application had been filed for registration
of the Geographical Indication. While undoubtedly the definition is wide, the persons who really need the protection are the artisans the artist and the
actual craftsmen and the growers, they might also be the most vulnerable. So we gave directions for publication. Indeed our apprehension was right
because after the publication in a prominent newspaper, and affixture of public notice, the intervener filed his petition, and several persons also filed
affidavits stating their interest. This has been referred to above. This response only showed that really ""the interested persons"" had no knowledge
when the application was filed. It is no answer to them to say that they can always file a petition under S. 17 of the Act and get themselves registered
as authorized users. The applicant himself in his application has stated that the task of manufacturing this unique Pavithra Mothiram was given to the
Chovatta Valappil family and yet the intervener who is the Secretary of Choovatta Valappil Tharavad Dharmadaiva Paripalana Trust was not made a
party. He filed M.P.1/2012, only after the publication was made. In the affidavit filed in support of the intervener petition the deponent C.P. Raghavan
has stated that he is the Secretary of the Tharavad Trust formed by members of the Choovatta Valappil Tharavad who traditionally make the
Payyannur Pavithra Mothiram.
2 4 . Both the appellant and the respondent clearly want to take advantage of reputation of the name Payyannur Pavithra Mothiram. The appellant had
obtained the trade mark Payyannur Pavithra Mothiram in the name of Subash Jewellery. The respondent had got himself registered as a proprietor of
Geographical Indication Payyannur Pavithra Mothiram and has displayed in his own showroom as the photographs filed along with the M.P.1/2012
showed. But both of them are in agreement about the traditional, religious and geographical significance of the Ring.
According to the appellant, only the appellant's family and no other person can claim the traditional right. Whereas, even in the opposition by K.
Balakrishnan, who is the proprietor of Sree Lakshmi Jewellery (not the respondent's business which is, Lakshmi Jewelleries), it is stated that P.
Venugopalan belonging to Padoli House is the only one who knows about the manufacture of the Ring and that it is the Mavichery Thekke Veetil
family which manufactures hundreds of ring and supplies the same to all the parties. The parties are unanimous in referring to the many famous
persons who have appreciated this ring. The opposition also shows that there are other goldsmith of Payyannur who know the workmanship of the
above ring, viz. Shri Karumthazha Lakshmanan Karanavar; O.K. Gopalan; C.V. Krishnan Karanavar; C.V. Jayachandran; C.V. Sivadasan; C.P.K.
Krishnan; M.T. Rajendran are also making the Pavithra Ring. According to the opponent's case the society is not competent to apply for sole
ownership. The opponent has mentioned the names of C.V. Jayachandran, C.V. Sivadasan and C.P.K. Krishnan.
The above mentioned C.V. Jayachandran is one of the persons who have filed affidavits as referred to earlier. He is the son of C.V. Kunhambu
Sarappu and he has stated that he is a gold smith. This Jayachandran belongs to Viswakarma community and to the Choovatta Valappil Tharawad.
According to him, except the Tharawad members nobody else had the genuine right to make the Payyannur Pavithra Ring and the Geographical
Indication registration has been obtained by a back door method by forming a society called Payyannur Pavithra Ring Artisans and Development
Society. According to him only Choovatta Valappil Tharawad is entitled to Geographical Indication.
We could have allowed the appeal on the sole ground that the application has not been properly filed. But we thought that we should take a lenient
view since this is one of the early GI's. There are many shortcomings in the proceedings. It is clear that the applicant/respondent has failed to furnish
the crucial particulars. The applicant ought to have shown that ""the producers"""" of the rings as defined in the Act had a desire to form the association.
There should be evidence to show that the association represents the interest of the producers. A mere claim that the society is called Payyannur
Pavithra Ring Artisans and Development Society will not suffice. There should be evidence to show that the producers are desirous of coming
together to protect the Geographical Indication, that is clearly absent. Above all on their own admission, it is the Choovatta Valappil family which was
entrusted with the technique of making the ring, but even the members of that Tharawad had no notice of the application. Such an application will
defeat the purpose of the Act.
2 8 . The lawmakers may consider introducing a provision which requires each applicant to effect a publication akin to the Section 4 Notice in the
Land Acquisition Act. The fact of the filing of the application must be published in a newspaper having good circulation in the locality and in the
language of the territory, region or locality which is the geographical origin of the goods in question. We are deliberately not using the word
vernacular"" since that has such a patronizing colonial flavour, whichever language it may be it is an Indian language. There must also be affixture of
public notice in prominent places in the territory, region or locality as the case may be. Only then, the artisans will know that a Geographical Indication
has been applied for in respect of the goods that they are creating. We are aware that ""a producer"" includes the person who deals in this goods or
selling those goods. However the main object of the Act is to protect those persons who are directly engaged in exploiting, creating or making or
manufacturing the goods. They have the hands-on experience of the G.I. products. When these creators or makers complain that the application has
been made behind their back we cannot allow the registration to remain. The artisans like weavers, goldsmiths and other craftsmen may not be
affluent or literate in English language, so the publication must be in the local language. The advertisement in S. 13 is in the Trade Journal is of no use
and will not serve the same purpose as a public notice akin to the S. 4 Land Acquisition Act notice. The appellant has also complained that the
Consultative Group has not visited the place and the Quorum was not formed.
Rule 33 refers to the Consultative Group. It reads as follows:
3 3 . Examination of application. - Upon receipt of an application, the Registrar shall examine the application and the accompanying Statement of Case
as required under rule 32(1) as to whether it meets the requirements of the Act and the Rules and for this purpose, he shall ordinarily constitute a
Consultative Group of not more than seven representatives chaired by him for organization or authority or persons well versed in the varied intricacies
of this law or field to ascertain the correctness of the particulars furnished in the Statement of Case referred to in rule 32(1) which shall ordinarily be
finalized within three months from the date of constitution of the Consultative Group. Thereupon, the Registrar shall issue a Examination Report on the
application to the applicant.
In the present case, the Consultative Group consisted of
Dr. S.N. Maity, Registrar of Geographical Indications - Chairman
Shri V. Ravi, Joint Registrar of Trade Marks - Member
Dr. T.N. Singh, IIT, Mumbai - Member
Dr. R.K. Gupta, Head IPMD - Member
5 . Shri V. Natarajan, Assistant Registrar of Geographical Indications - Member
Rule 33 refers inter alia to persons well-versed in the varied intricacies of ""this field"". It is better to have at least one person from the special field to
which the goods relate. That alone will lend credibility to the proceedings. To ascertain whether the claim of the applicant that Payyannur is a
Geographical Indication for this Ring, an artisan or a producer from Kerala of repute should have assisted the group in forming an opinion whether the
claim that this kind of ring with the particular weight and dimensions is made only in Payyannur. None of the Members who formed the Consultative
Group are from this field i.e. familiar with the craftsmanship of gold jewellery. We cannot ignore the word ""this field"". Inclusion of such a member
with expertise will undoubtedly further the Objects and Reasons and will ensure the protection of the artisans and craftsmanship. A person of
expertise should be a Member of the Consultative Group. The report of the Consultative Group is a valuable document to help the G.I. Registrar in
arriving at his conclusion. It should be a complete document so that anyone interested in the G.I. will know how it was granted. It may contain the
following details. If the Group has examined certain persons, a brief account of what they had stated together with the names and details of those
persons should be there. If the Group had visited the place, it must give the date of the visit. If the Group had collected some materials from the site it
must give the details. The report must contain all the details that were relevant for drawing the conclusion. We are remanding the matter, we may
have directed that an expert in this field must also be heard, but since all the parties agree that this particular kind of Pavitra mothiram is made only in
Payyanur, and that statement is uncontested, we will not give that direction.
According to the Learned Counsel for the respondent the appellant has not come to Court with the clean hands and that his interest appears to be
more to protect his trade mark Payyannur Pavithra Mothiram. The averments in the appeal and opposition show how the craftsmanship of the ring has
been handed down from generation to generation. In Intellectual Property Right related matters be it G.I., Patents or Trademarks the dispute is really
not inter-partes alone, there is always the issue of public interest. The Geographical Indication Registrar and this Board must protect this public
interest. The history of the Payyannur Pavithra Ring, as seen from the statements of all the parties before us shows that though there may be other
Rings in the market called Pavithra Ring, this particular design and the manner in which the Ring is made is special to this area. But the application has
not been properly filed and there are other shortcomings in the proceedings as well. Hence while removing the name of the respondent from the
register, we send it back to the Geographical Indication Registrar.
The Trade Mark Registry shall send notice to all the parties concerned including those who have filed their affidavits mentioned in para 10 and in
particular the opponent K.Balakrishnan. The genesis for this appeal was his opposition. He chose not to appeal against the registration. But he has
filed an affidavit. Technically he should have been shown as a party in this appeal and the appellant ought to have impleaded him in the Writ petition
since he was challenging the order passed in those opposition proceedings. The non-joinder was improper.
The Registrar shall hear all the parties. The respondent may furnish evidence that it is an association of producers, who are desirous of registering
the Geographical Indication. The application for Registration of Appellations of Origin in the Countries in Europe follows upon voluntary initiatives by
registered producers. These countries have the longest history of registering such marks. Our Act takes off from the Trademark Act, but it too
requires a volition or desire from the producers. The evidence must show that the named producers are actually ""producers"" as defined by the Act.
The membership fees for becoming the members of the applicant was said to be prohibitively high and not intended to include the artisans. The
applicant may bear this in mind. The right of the intervener to be registered as a proprietor may also be considered, upon the Intervener filing the
appropriate Form. The committee shall also ascertain from the persons who have filed the affidavits, for example, P. Venu, whether they are desirous
of being registered as Authorized Users. We are giving these directions because it is a new Act and the persons who are actually engaged in
manufacturing of the goods may not know the law. If such applications under S. 17 are filed they may also be considered. Thereafter the Registrar
can pass an order registering that association which satisfies the requirements of the Act. It is also open to the Geographical Indication Registrar, if he
is so satisfied, to register the association viz. the Respondent association and the Trust (Intervener) as joint proprietors. It is open to the proprietor of
Subash Jewellers to apply as an authorized user or as a member of the Society, it is left to his discretion.
34 . The respondent shall forthwith remove the display board which prominently indicates the words Payyannur Pavithra Mothiram. Even if after
consideration of all the materials the geographical indication Registrar comes to the conclusion that the respondent society is entitled to be a registered
proprietor individually or jointly, the shop Lakshmi Jewellery cannot take advantage of the registration of the Geographical Indication. The submission
that the registered address of the society is the same as the business address of the respondent does not help. Definitely no commercial advantage
shall inure to the benefit of Lakshmi Jewellery by this registration.
3 5 . We have to record our appreciation of both the Learned Counsel Mr. Balachandran and Mr. Giridhar for their utmost co-operation. The Learned
Counsel for the Appellant did not object to our directions for publication, nor did the Learned Counsel for the respondent seriously object to impleading
the Intervener. Both were assisting the Court without being very adversarial. Our directions and observations were not resisted, since they too
understood that the Act must be worked well and in consonance with the Objects and Reasons of the Act. In conclusion the impugned order is set
aside and the matter is remanded for consideration in accordance with law and the directions given above. The Registrar shall pass the orders within
six months from the date of receipt of the order. No costs.