Elaborate the unauthorised use and registration of Darjeeling Tea and logo in Japan and defending GI against developed countries.

In a case, the Tea Board had filed an invalidation action against International Tea KK, a Japanese Company, over the registration of the Darjeeling logo mark, namely, Darjeeling women 'serving tea/coffee/coca/soft drinks/fruit juice' in the Japanese Patent Office (JPO) on 29th November 1996 with the trademark registration number 3221237. The impugned registration was made notwithstanding the registration in Japan of the identical Darjeeling logo mark by the Tea Board of India, with the trademark registration number 2153713, dated 31st July 1987. The Tea Board had also filed a non-use cancellation action. On 28th August 2002, the JPO Board of Appeal had held that the pirate registration was invalid because it was contrary to public order and morality. With regard to the Tea Board's non-use cancellation action, the JPO decided that International Tea KK had not furnished sufficient evidence to substantiate its use of registration and thereby allowed the appeal of the Tea Board. In another case, the Tea Board had filed its opposition in respect of an application for registration of 'Divine Darjeeling' under class 30 (Darjeeling Tea, Coffee and Cocoa product in Darjeeling, India) filed by Mitsui Norin KK of Japan advertised on 29th February 2000. The grounds of opposition were: 'Divine' is a laudatory term and accordingly the mark for which protection is sought is merely 'Darjeeling', which is clearly non-distinctive; 'Divine Darjeeling' is misleading insofar as 'coffee and cocoa products in Darjeeling' are concerned, all the more so because the district of Darjeeling does not produce coffee or cocoa; Darjeeling tea qualifies as a geographical indication under international conventions including TRIPS and ought to be protected as such in Japan, a member of TRIPS. The Opposition application filed by Tea Board was however dismissed by the JPO Opposition Board stating that the mark 'Divine Darjeeling' as a whole was not misleading or descriptive of the quality of goods. In yet another case, the Tea Board brought an invalidation action against the act of trade mark registration of 'Darjeeling tea' with the map of India in class 30 by a Japanese company, Yutaka Sangyo Kabushiki Kaisa, on the ground that the registration was contrary to the public order and morality. The action was however rejected on the ground that 'the written English characters 'Darjeeling tea' and 'Map of India' for the goods of Darjeeling tea are used as an indication of the origin and quality of Darjeeling tea and will not harm the feelings of the Indian People'. However, the non-use cancellation action filed by Tea Board succeeded, because the registered proprietor was not able to place on record sufficient evidence to prove the use of the mark in Japan. A perusal of these decisions reveals that the JPO did not decide the contention of the Tea Board of India relating to the TRIPS Agreement, which requires WTO members to provide the legal means to prevent the use of a GI for goods originating in a geographical area other than the true place of origin in a manner which misleads the public to constitute an act of unfair competition. Indeed, non-disposal of the argument that the procedural guidelines of WTO be followed dilutes the effect of the TRIPS Agreement. Indian Legal System protects French GIs, while France on the other hand does not extend similar or reciprocal protection to Indian GIs. Thus, French law does not permit any opposition to be made to an application for registration of a trademark similar or identical to a GI if the goods covered are different from those represented by the GI. The owner of the GI can take appropriate judicial action only after the impugned application has proceeded for registration. The net effect of such a provision has been that despite India's protests, 'Darjeeling' has been misappropriated as a trade mark in respect of several goods in class 25, namely, clothing, shoes and headgear in France. The French Examiner - even though he found evidence supporting the case made out by the Tea Board of India: on sufficient proof of use of 'Darjeeling' tea in France, and that the applicant had slavishly copied the name 'Darjeeling' in its application - held that the respective goods falling in the category of 'clothing, shoes, headgear' and 'tea' respectively are not of the same nature, function and intended use, produced in different places and sold through different networks. The Examiner also held that even if the applicant has slavishly copied the Tea Board's Darjeeling logo (being the prior mark), the difference in the nature of the respective goods is sufficient to hold that the applicant's mark may be adopted without prejudicing the Tea Board's rights in the name 'Darjeeling'. Russia: The Tea Board had filed an application for unauthorized use by a company of the trade mark 'Darjeeling'. This application was objected to on the ground of conflict with an earlier registration of the identical word by a company named 'Akorus'. The Russian Patent Office overruled the objection and accepted the application of Tea Board of India for the use of the trade mark 'Darjeeling'. United States: In a case, the Tea Board was opposing an application filed by its licensee in United States to register 'Darjeeling nouveau' ('nouveau' is the French for 'new') relating to diverse goods and service such as clothing, lingerie, Internet services, coffee, cocoa and so on in respect of first flush Darjeeling tea. The registration application is under consideration even though 'Darjeeling' is already registered under US CTM law. Other countries: Quite apart from the above, in several cases the Tea Board of India opposed attempted registration and unauthorized use of the word 'Darjeeling' in Germany, Israel, Norway and Sri Lanka before the Patent Office of the country concerned.