A Geographical Indication (GI) may be defined as a name or a sign used on goods that have a specific geographical origin, where a given quality, reputation, or other characteristics of the good are essentially attributable to its geographical origin. 

Remarkably, Ceylon Tea and Ceylon Cinnamon have been top-notch GI products which have immense potential in bringing socioeconomic benefits to the country. There were times when Sri Lanka became the leading exporter of both Ceylon Tea and Ceylon Cinnamon to the international market, although it has since slipped to second or third place. 

The concept of GI was first introduced by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994, although similar concepts such as appellations of origin and indications of source were previously recognised under the Paris Agreement, Madrid Agreement, and Lisbon Agreement. 

When the present Intellectual Property Act No.36 of 2003 was enacted in Sri Lanka to comply with the TRIPS Agreement, the notion of GIs was included but without a registration mechanism. 

GI registration system in SL 

Nearly 30 years after TRIPS, a long-due amendment was introduced to the Intellectual Property Act of Sri Lanka in 2022 introducing a GI registration system. In facilitating GI registration, this amendment entails provisions regulating admissibility of GIs, application for registration, opposition to registration, renewal of GIs, issue and certificate of registration, rights of the registered owner, generic GIs, cancellation of registration, foreign GIs, and alterations to registered GIs. 

This amendment is expected to pave the way for the registration of potential GIs in Sri Lanka such as Ruhunu curd, Ceylon sapphire, Ceylon coconut, Dumbara mats, and Ambalangoda masks.

Prior to the enactment of the 2022 amendment, the 2018 amendment of the Intellectual Property Act empowered the relevant minister to prescribe GIs. The intent behind this amendment was to demonstrate the home protection of GIs in registering GIs in foreign jurisdictions. However, no GIs were declared under this amendment act and it was subsequently repealed by the 2022 amendment. 

France in 1905 implemented a similar law which granted power to administrative authorities to delimit vineyards producing quality wines, which was subsequently abolished in favour of a producer-based approach, moving away from a strict top-down model.

International protection of GIs

A study conducted on the economic value of GIs at the request of the European Commission has revealed that GI-marked products accounted for the largest share of the total sales value with € 74.8 billion in 2017 and GI products were sold nearly three times higher than the price of comparable non-GI products. 

One major reason why Sri Lankan products have not achieved the same level of economic benefit is the non-registration of GIs at home. As a result, counterfeit and low-quality products have flooded markets where Sri Lanka’s most economically valuable products could otherwise thrive. This situation is further aggravated by the TRIPS Agreement, which clearly states that its member states are not bound to protect GIs that are not protected in the home country.

This issue could be largely mitigated if Sri Lanka could register these products as GIs within the country, thereby building up a strong case for securing GI status in countries with potential markets. 

In the meantime, Sri Lanka should also consider becoming a party to the Lisbon Agreement, which by its latest revision in 2015 provides for the international protection of appellations of origin and GIs through a single procedure with the World Intellectual Property Organization (WIPO). This would enable GI holders to obtain protection in multiple jurisdictions by filing a single application and paying one set of fees.

However, it is worth noting that Sri Lanka reached a significant milestone by securing Protected Geographical Indication (PGI) status for Ceylon Cinnamon in the European Union (EU) in 2022 even before establishing a registration system at home. This achievement was a result of long and dedicated efforts by the Export Development Board (EDB) with the support of the United Nations Industrial Development Organization (UNIDO) and various other stakeholders. Similarly, Sri Lanka has also initiated GI registration in the EU for Ceylon Tea. 

Meanwhile, the benefits deriving from a GI registration system are not limited to prevention of counterfeit products in the domestic and international markets. GIs are a beacon of the natural riches and cultural heritage of a country, and a useful tool in promoting rural development. It also represents traditional knowledge evolved over time in a specific geographical region. 

In another study report prepared for the European Commission, it has also been emphasised that environmental sustainability and animal welfare could be additional benefits of GIs and shall be among the objectives set in the EU legislation on GIs. 

Indian scenario

India, our neighbouring country, enacted a GI registration system in 1999 and the number of registered GIs has since surpassed 600. 

Notably, the handicraft sector in India dominates the GI register, accounting for 53% of all registered GIs. Kancheepuram Silk, Kondapalli Bommalu (a variety of wooden toys), Pipli Appliqué Work, and leather toys of Indore are a few such non-agricultural products registered in the Indian GI register, apart from agricultural products such as Darjeeling Tea, Basmati, Vazhakulam Pineapple, and Alphonso Mango. 

However, at times, the Indian experience of registering handicrafts has been criticised for expanding the scope of GIs beyond the conceptually accepted parameters. The protection and registration of GIs in India is also uniquely characterised by the intervention of the State at a level that was entirely unexpected. Accordingly, State Governments, statutory boards, State-owned companies, and even State universities have applied for GI registrations in India. 

Despite the risk of bias of the GI registry when state parties become GI applicants, the State initiative to register GIs in India could be seen as a positive move, particularly in supporting disadvantaged producers and protecting cultural heritage. 

Once, a GI registrar claimed: “With GI protection for thousands of Indian products, the country can become invincible and be a breadbasket for the globe. Within a generation, the sleeping giant called India will change the face of global power politics.” The growing number of GI registrations is a reflection of this mindset regarding the protection of GIs. 

Protection of non-agricultural GIs

The TRIPS Agreement imposes no restriction on the types of goods that could be registered as GIs. However, despite this, the EU did not recognise non-agricultural GIs until 2023. With the new regulation of 2023, which will come into force in 2025, the opportunity will be available for the registration of non-agricultural GIs as well. 

Sri Lanka, though, has not been inclined to recognise non-agricultural GIs and is primarily concerned with agricultural GIs; it is now crucial to initiate GI registration of non-agricultural products as well. Hence, once GI regulations are put in place under the recent amendment act, Sri Lanka can be well positioned to register GIs both at home and abroad.

The EU context

In April this year, the EU introduced a more comprehensive GI regulation, building on the benefits of an earlier regulation established in 2012. While considering changes taking place in society such as developments in cyberspace in the protection of GIs, this law also attempts to further strengthen the parameters of the GI notion. 

Hence, it is important that a newer entrant like Sri Lanka adopt or reinvent the EU law, which is often considered as a well-established model in the protection of GIs. It is also noteworthy to mention that in Australia, representing the New World countries which initially took a different stance on the protection of GIs, a number of scholars have highlighted the importance of broadening its GI protection beyond just wine.

The way forward

All in all, with the introduction of the registration system, Sri Lanka has opened up new opportunities in the field of GIs. In the years to come, adoption of regulations to facilitate GI registration and its implementation will be pivotal in the protection of GIs. 

While there are many lessons to be learnt from the Indian system and at a time when the 2022 amendment already reflects provisions similar to the Indian act, it is important that we learn from the mistakes India made in the registration of GIs. For this, a careful study of Indian GI applications in comparison with the EU experience is of paramount importance.

This will enable Sri Lanka to fully leverage its rich natural resources and cultural heritage while adhering to the conceptual parameters of GIs.  

(Prof. Punchihewa is the Dean of the Faculty of Law of the University of Colombo. De Silva is the Head of the Department of Public Law at the Faculty of Law of the General Sir John Kotelawala Defence University)