Significance of the protection of GI through

Certification trademarks in India and US

By
Sashidhar Chalapati | 1226113111

Under the guidance
of
Dr. P. Sree Sudha


LEGAL PROTECTION OF
GEOGRAPHICAL INDICATION IN INDIA

In India, the legal system for GI protection has very recently been developed. The
Geographical Indications of Goods (Registration and Protection) Act was enacted in 1999
and has come into force in September 2003 (hereafter called GI Act). Before this act, there
was no separate legislation for GIs specifically. However, there were three alternative ways
in which the then existing legal systems of the country could be utilised for preventing the
misuse of GIs.

(i) Under the consumer protection laws;
(ii) Through passing off action in courts; and
(iii) Through certification trademarks.

Among these laws, certification trademarks (CTM) were more focused on Recognised and
protecting indication of sources. In the Indian context, the most common Geographical name
protected under the CTM system, prior to the GI Act, was Darjeeling Tea.2 A certification
trademark is understood as a mark administered by a proprietor who certifies the goods as to
their origin, material, mode of manufacture, or performance of services, quality accuracy or
other characteristics, and thereupon allows use of the mark.

Under the CTM system, a proprietor of the mark who proposes to merely Administer the
mark but not use it him or herself, applies for the registration of the same together with a set
of elaborate regulations detailing the process of certification for the use of the mark in
relation to the goods in question. It is absolutely imperative in the CTM system that the
person claiming proprietorship over the mark does not him or herself use the same in
conjunction with his or her goods or services. It is therefore usual to find that a central agency
or association usually administer the mark in question and acts as the certifying authority,
which in turn authorises the use of the mark by producers/manufacturers in relation to their
own goods. Certification trade marks can be registered under the Trade Marks Act of India.

It may be noted that India has recently established a silk mark to certify genuineness of silk
textiles in India and Darjeeling, a certification marks for a specific type of Tea produced in
Darjeeling and can be marketed, provided the product satisfies the set quality standards.
Similarly, WOOL MARK certifies that the goods on which it is used are made of 100% wool
and LABEL ROUGE use for high quality agricultural products in France.3

In its simplest form, the principle of passing-off states that No-one is entitled to pass off his
goods as those of another. The principal purpose of an action against passing off is therefore,
to protect the name, reputation and goodwill of traders or producers against any unfair
attempt to free ride on them. Though, India, like many other common law countries, does not
have a statute specifically dealing with unfair competition, most of such acts of unfair
competition can be prevented by ways of action against passing off.

In India, GIs have been governed by common law principles, which enable an aggrieved
person to file an action of passing off for protection of his right. In other words, it is based
on usage and common knowledge about the characteristic features and quality or reputation
that the product has already earned in the market either by publicity or by its presence in the
market. A survey of decided cases reveals that Indian courts have maintained the action of
passing off to protect GIs. 4 Scotch Whisky Association v. Pravara Sahakar Karkhana Ltd.,5
is a leading case on this subject.

In this case, the plaintiff Scotch Whisky Association, a company incorporated under the
Companies Act of United Kingdom instituted the passing off action against the defendants- a
manufacturer of various brands of Indian Whisky like blended scotch whisky or Blended
with Scotch under various brand names, Drum Beater and God Tycoon. On these facts,
the Bombay High Court held: The Plaintiff had sufficient interest to prevent passing off of
Indian Whisky manufactured by the defendant and to prevent damage to reputation and
goodwill of Scotch whisky.

The defendants were passing off their goods as blended Scotch whisky which in fact they
were not. The case therefore merited interim injunction. The defendants resorted to unfair
means by using the words Blended with Scotch and indulged in colourable imitation and
unfair trading in an attempt to harvest unjust benefits by appropriation of plaintiffs goodwill.
The defendant was restrained from advertising or offering for sale or distributing in any
country Whisky, which is not Scotch whisky. It is evident from the aforesaid decision that the
judiciary in India has consistently extended the umbrella of legal protection to GIs even in the
absence of any legislation in force at that point of time.

Challenges and Problems in the Post GI Act Regime


The Government of India has established the Geographical Indications Registry with all-
India jurisdiction at Chennai, where the GIs can be registered. Authorities claim that this Act
has two key characteristics; (i) protection of producers against counterfeiting and misleading
commerce, and (ii) striking of balance between trademark and GI protection. According to
this Act, once a GI is registered, any person claiming to be the producer of the good
designated by the registered GI can file an application for registration as an authorised user.
The GI Act is to be administered by the Controller General of Patens, Designs, and
Trademarks who is the Registrar of GIs. The registration of a geographical indication is for
a period of ten years. Renewal is possible for further period of ten years. If a registered GI is
not renewed, it is liable to be removed from the register.

Analysis of the GI Act

Prior to enactment of GI Act,25 there was no law for the protection of geographical
indication in India. The need and justification for this law has been aptly stated in the
statement of object and reasons as under: At present there is no specific law governing
geographical indications of goods in the country which could adequately protect the interests
of producers of such goods.

Exclusion of unauthorised persons from misusing geographical indications would serve to
protect consumers from deception, add to the economic prosperity of the producers of such
goods and also promote goods bearing Indian geographical indications in the exports market.

Unless a geographical indication is protected in the country of its origin there is no obligation
under the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) for
other countries to extend reciprocal protection. India would, on the other hand, be required to
protection to goods imported from other countries which provide for such protection.
In view of the above circumstances, it is considered necessary to have a comprehensive
legislation for registration and for providing adequate protection for geographical
indications.

Until recently and in past, protection from such misuse of geographical indications was
granted through passing off action in courts26 or through certification marks. However, in
order to provide better protection to geographical indications, the Parliament enacted
Geographical Indications of Goods (Registration and Protection) Act, 199928 which is quite
similar and in lines with the New Zealand GI Act.

This received the assent of the President of India on the 30th December 1999. This Act seeks
to provide for registration and better protection of geographical indications relating to goods.

It excludes unauthorised persons from misusing geographical indications. This would protect
the interest of producers, manufacturers and thereby consumer from being deceived by the
falsity of geographical origin to economic prosperity of the producer of such goods and
promote goods bearing Geographical indications in export market.

Unless a geographical indication is protected in the country of its origin, there is no
obligation under the agreement under Article 22 of the TRIPs agreement for other countries
to extend reciprocal protection. It is in this context that the Act was enacted.

The Act has been divided into nine chapters. Chapter-I is preliminary which inter alia, defines
various terms used in the Act. Chapter II deals with the appointment, powers and
establishment of Registry. It also provides for registration in respect to particular goods and
areas and prohibition of registration.

Around 1500 products from India have reportedly been identified as having the potential to
get registered as GIs. Till July 2012, 178 GI got registered with the GIs Registry including
few foreign GIs.



A striking feature of Indian GIs is the variety of product categories to which they belong.
These include textiles, handicrafts, paintings, agricultural products, horticultural products,
beverage, among others. This is in sharp contrast with the European Scenario, where GIs
predominantly relate to Wine and Spirits, or other food and agricultural products.82 Table 1
depicts the distribution of registered GIs in India as per certain broad product categories. As
may be noted from this table 1 out of the total of 178 (i.e.65.16%) registered GIs are in the
category of handicrafts (including handlooms, paintings, etc.).

Notably often these are also the products that are based on the traditional knowledge (TK)
being passed on from one generation of the artisans community to the next, clearly reflecting
Indias rich heritage of TK in arts and crafts of diverse genres; and the significant roles that
GIs can potentially play in the context of these products.

It may also be noted from table 1 that out of 178 registered GIs, 44 (i.e., around 25.58%)
belong to agriculture. The predominance of artisanal and agriculture- related products among
he registered GIs, which taken together comprise 154 out of the total of 178 (i.e., 89.53%)
clearly indicates that GIs have a significant potential to facilitate rural development in India.
It is interesting to note in table 1 that out of 178 registered GIs only 74 (i.e.Around 43.02%)
belong to manufactured and foodstuffs 4 (i.e. 2.3%)


Issues and concerns


There are a number of issues and concerns in the context of harnessing the potential
commercial benefits out of GI registration in India. Perhaps the biggest concern is near
complete absence of an effective post GI mechanism in the country. Which domestic
registration of a GI is a relatively easy task and there has been some progress on this account
over the last 9 years, it is important to understand that only registration of goods perse does
not fulfil the objectives of the Act, unless it is backed by sound enforcement mechanism both,
in domestic and export markets.

In fact, the enforcement of the Act in other countries is a much more complicated venture as
this may pose a variety of constraints including technicalities involved in the registration
process in various foreign countries, exorbitant expenses involved in appointing a watch-dog
agency to get information on misappropriation; and huge financial resources needed for
fighting legal battles in foreign lands.

The Governments role is vital in the post GI mechanism because without government
support, most producer groups do not have the wherewithal to effectively defend and promote
their GI brand in India, perhaps only in the case of one good i.e. Darjeeling Tea, the Tea
Board has had some success in defending against misappropriation in a few countries because
they have the financial capacity to do so.

Though the Act defines the cases when a registered GI is said to be infringed, it is silent on
the mechanism and provisions to fight against the infringement and this is an area where the
government needs to play larger role. In the opinion of Rajnikant Dwivedi, Director of
Human Welfare Association, an association based in Varnasi working with handloom
weavers, benefits of GI protection under the GI Act will actually depend on how effective is
the post GI mechanism.

Banarasee Saree Weavers Continue to be a distressed lot idle looms have not begun
functioning and unscrupulous practices of selling imitation products in the name of Banarsee
Saree have not been curbed. Mr.Anil Singh, Director Need, a Lucknow based organisation
and also an applicant in GI registration for Lucknow Chikan craft says that GI may leave the
artisans community completely high and dry as the awareness level on GI, the mot basic
recipe for success of any policy, is alarmingly dismal.

The post GI mechanism must have adequate provision for promotion and continuous
awareness building. Chikan Craft, being an eco-friendly, gender sensitive craft, has huge
potential to increase the bargaining power of the producers; however, this potential has not
been tapped. Attempts have been made by the State Government to tap this potential by
merging GI promotion with the department of tourism, promoting producer companies and
other promotional measures.

However, these efforts remain restricted to a few areas where civil society is alive. One of the
key concerns that Mr.Singh points out is that a majority of producers do not have the capacity
to report and fight an infringement case.84 At present, the action related to GI appears
concentrated on registration of GI goods and in many cases the state governments are acting
in haste.

The identification and registration is happening without adequate due diligence. Applicants
often do not assess the commercial status /prospects of a GI product in the domestic and
export markets; the potential of its GI status in contributing to its future growth; and the
socio-economic implications of its GI protection for the communities involved in its supply
chain. As a result, the larger and the real objectives of the Act are by passed, often leading to
frivolous and consequential registration. Moreover, as GIs are a collective rights and not an
individual right, the registration process offers an opportunity for community level
sensitization and awareness.

However, in the haste to register GIs, this opportunity is lost. The awareness and involvement
in the registration process of even GI goods remain reduced to the level of a few selected
stakeholders. This has in some cases led to seriously erroneous omissions and commission,
defeating the large purpose of the GI Act.85 In case of Madhubani painting error has been
pointed out. Madhubani painting on paper is registered as GI under class 16 which implies
that Madhubani painting on cloth is not protected.



Conclusion

The GI Act, which came into force, along with the GI Rules, with effect from 15 September
2003, has been instrumental in the extension of GI status to many goods so far. The central
government has established the Geographical Indications Registry with all-India jurisdiction,
at Chennai, where right-holders can register their GI. Unlike TRIPS, the GI Act does not
restrict its special protection to wines and spirits alone.

The central government has discretion to decide which products should be accorded higher
levels of protection. This approach has deliberately been taken by the drafters of the Indian
Act with the aim of providing stringent protection as guaranteed under the TRIPS Agreement
to GI of Indian origin. However, other WTO members are not obligated to ensure Article 23-
type protection to all Indian GI, thereby leaving room for their misappropriation in the
international arena.

Registration of GI is not compulsory in India. If registered, it will afford better legal
protection to facilitate an action for infringement. Once a GI is registered in India, it becomes
relatively easier to seek protection in other countries, particularly the member countries of
WTO.


Geographical Indication Protection in the United States

Geographical Indications

Geographical indications (GIs) are defined at Article 22(1) of the World Trade
Organizations (WTO) 1995 Agreement on Trade Related Aspects of Intellectual Property
Rights (TRIPS) as indications which identify a good as originating in the territory of a
Member, or a region or locality in that territory, where a given quality, reputation or other
characteristic of the good is essentially attributable to its geographic origin. Examples of
geographical indications from the United States include: FLORIDA for oranges; IDAHO
for potatoes; and WASHINGTON STATE for apples.

Geographical indications can be viewed as a subset of trademarks. Geographical indications
serve the same functions as trademarks, because like trademarks they are: 1) source-
identifiers, 2) guarantees of quality, and 3) valuable business interests. The United States has
found that by protecting geographical indications through the trademark system usually as
certification and collective marks -- the United States can provide TRIPS-plus levels of
protection to GIs, of either domestic or foreign origin. The United States has provided
protection to foreign and domestic GIs since at least 1946, decades prior to the
implementation of the TRIPS Agreement (1995) when the term of art geographical
indication came into wide use.

How Does the United States Protect Geographical Indications

The United States GI system uses administrative trademark structures already in place, and
provides opportunities for any interested party to oppose or cancel a registered GI if that
party believes that it will be damaged by the registration or continued existence of a
registration. The same governmental authority (the United States Patent and Trademark
Office or USPTO) processes applications for both trademarks and GIs.

The United States does not protect geographic terms or signs that are generic for
goods/services. A geographic term or sign is considered generic when it is so widely used
that consumers view it as designating a category of all of the goods/services of the same type,
rather than as a geographic origin. As an example, the word apple cannot be protected as a
trademark for apples because the word apple is the generic name for the fruit. Many
countries, such as the United States, do not protect generic indications because they are
believed to be incapable of identifying a specific business source (or a specifically defined
collective producing source). Once a geographic designation is generic in the United States,
any producer is free to use the designation for its goods/services.

Another feature of the United States trademark/GI system is that it provides the trademark or
GI owner with the exclusive right to prevent the use of the mark/GI by unauthorized parties
when such use would likely cause consumer confusion, mistake or deception as to the source
of the goods/services. In this way, a prior right holder has priority and exclusivity over any
later users of the same or similar sign on the same, similar, related, or in some cases unrelated
goods/services where consumers would likely be confused by the two uses.

Benefits of Protecting Geographical Indications Through a Trademark System

Protecting GIs as trademarks, collective or certification marks employs the existing
trademark regime, a regime that is already familiar to businesses, both foreign and domestic.
Moreover, no additional commitment of resources by governments or taxpayers (for example,
personnel or money) is required to create a new GI registration or protection system. A
countrys use of its existing trademark regime to protect geographical indications involves the
use only of resources already committed to the trademark system for applications,
registrations, oppositions, cancellations, adjudication, and enforcement. Furthermore, the
system easily accommodates geographical indications that are not merely place names, but
signs such as words, slogans, designs, 3-Dimensional marks, colors or even sounds and
scents.

In addition to fulfilling all of the requirements of substantive GI and trademark obligations in
TRIPS, this system meets the requirement for national treatment and the obligations in TRIPS
regarding enforcement. (National treatment, an obligation in the TRIPS Agreement, requires
WTO Members to provides the same or better treatment of foreign nationals regarding
intellectual property rights as provided to domestic nationals.) Also, the system is self-
policing: competitors, businesses in the geographic area, or mark owners will undoubtedly
raise issues of infringement, and failure to comply with certification standards, among other
things. Thus, governments do not have to commit additional enforcement resources to ensure
compliance. Moreover, private owners are not forced to wait for their government to take
action against infringement or address unauthorized use. The owner can determine when to
take action and may do so immediately, at the first sign of infringement, thus preserving
profits before they are channeled towards a competitor.

GIs as Certification Marks

The U.S. Trademark Act provides that geographic names or signs--which otherwise would be
considered primarily geographically descriptive and therefore unregistrable as trademarks or
collective marks without a showing of acquired distinctiveness in the United States--can be
registered as certification marks.

A certification mark is any word, name, symbol, or device used by a party or parties other
than the owner of the mark to certify some aspect of the third parties goods/services. There
are three types of certification marks used to indicate: 1) regional or other origin; 2) material,
mode of manufacture, quality, accuracy or other characteristics of the goods/services; or 3)
that the work or labor on the goods/services was performed by a member of a union or other
organization.

The same mark can be used to certify more than one characteristic of the goods/services in
more than one certification category: the mark ROQUEFORT (U.S. Registration No. 71,798)
is used to indicate that the cheese has been manufactured from sheeps milk and cured in the
caves of the Community of Roquefort (France) in accordance with their long established
methods and processes.

The U.S. Trademark Act differentiates certification marks from trademarks by two
characteristics. First, a very important feature of a certification mark is that its owner does not
use it. Second, a certification mark does not indicate commercial source nor distinguish the
goods or services of one person from those of another person. This means that any entity,
which meets the certifying standards, is entitled to use the certification mark. However,
certification marks are source-identifying in the sense that they identify the nature and quality
of the goods and affirm that these goods have met certain defined standards.

A certification mark may not be used by the owner of the mark because the owner does not
produce the goods or perform the services in connection with which the mark is used. The
mark may be used only by entities other than the owner of the mark, with authorization from
the owner of the mark. The certification mark owner controls the use of the mark by others on
the certified goods/services, such control consisting of the taking steps to ensure that the
mark is applied only to goods/services that contain or display the requisite characteristics or
meet the specified requirements that the certifier/owner has established or adopted for the
certification.

The purpose of a certification mark is to inform purchasers that the goods/services of the
authorized user possess certain characteristics or meet certain qualifications or standards. A
certification mark does not indicate origin in a single commercial or proprietary source. The
message conveyed by a certification mark, when it is applied to goods or used in connection
with services, is that the goods/services have been examined, tested, inspected, or in some
way checked by the certifier/owner who is not the producer of the goods/services, by
methods determined by the certifier/owner. The placing of the mark on goods or its use in
connection with services thus constitutes a certification by someone other than the producer
that the prescribed characteristics or qualifications of the certifier for those goods/services
have been met.

In the experience of the United States, in most instances the authority that exercises control
over the use of a geographical term as a certification mark is a governmental body or a body
operating with governmental authorization. When a geographical term is used as a
certification mark, two elements are of basic concern: first, preserving the freedom of all
persons in the region to use the term and, second, preventing abuses or illegal uses of the
mark which would be detrimental to all those entitled to use the mark. Generally speaking, a
private individual is not in the best position to fulfill these objectives satisfactorily. The
government of a region is often the logical authority to control the use of the name of the
region. The government, either directly or through a body to which it has given authority,
would have power to preserve the right of all persons and to prevent abuse or illegal use of
the mark.

All applications for federal registration of certification marks are examined (as are
applications for trademarks and collective marks) at the USPTO. The accompanying
specimens of use and evidence in the record are reviewed to determine whether the
geographical sign is being used as a certification mark to indicate the geographical origin of
the goods/services upon which it is used. If the record or other evidence available indicates
that a specific sign in question has a principal significance as a generic term denoting a type
of goods/services, registration will be refused. In re Cooperativa Produttori Latte E Fontina
Valle D'Acosta, 230 USPQ 131 (TTAB 1986) (FONTINA held a generic name of a type of
cheese rather than a certification mark indicating regional origin, in view of the fact that non-
certified producers outside that region use the term to identify non-certified cheeses).

If use of the sign is controlled by the certifier and limited to goods/services meeting the
certifiers standards of regional origin, and if purchasers understand the sign to refer only to
goods/services produced in the particular region and not to goods/services produced
elsewhere, then the sign functions as a regional certification mark. Institut National Des
Appellations DOrigine v. Brown-Forman Corp., 47 USPQ2d 1875 (TTAB 1998)
(COGNAC held to be a geographical indication for brandy from France). If, before
registration, the USPTO becomes aware that the applicant does not have the authority to
exercise control over use of the certification mark, registration will be refused ex officio.

As for the enforcement of the certifiers standards, competitors and consumers--those with
the greatest interest in maintaining accuracy and high standards--ensure that certifiers
maintain the requisite quality. Of course, the U.S. government has agriculture inspectors for
various types of food and beverages, but that is something completely different.

With respect to protection of geographical indication certification marks, affected parties can
oppose registration or seek to cancel registrations, all within the existing trademark regime in
the United States. So, if a party believes that the certifier is not following its own standards or
is discriminating by denying use of the mark to a qualified party, that party can file an
opposition or cancellation proceeding against the certification mark or an action in federal
court.

GIs as Collective Marks

There are two types of collective marks in the United States: (1) collective trademarks or
collective service marks and (2) collective membership marks. The distinction between these
types of collective marks is explained by the Trademark Trial and Appeal Board (TTAB), a
USPTO administrative tribunal, as follows:

A collective trademark or collective service mark is a mark adopted by a "collective"
(i.e., an association, union, cooperative, fraternal organization, or other organized
collective group) for use only by its members, who in turn use the mark to identify
their goods or services and distinguish them from those of non-members. The
"collective" itself neither sells goods nor performs services under a collective
trademark or collective service mark, but the collective may advertise or otherwise
promote the goods or services sold or rendered by its members under the mark.

A collective membership mark is a mark adopted for the purpose of indicating
membership in an organized collective group, such as a union, an association, or other
organization. Neither the collective nor its members uses the collective membership
mark to identify and distinguish goods or services; rather, the sole function of such a
mark is to indicate that the person displaying the mark is a member of the organized
collective group.

Aloe Creme Laboratories, Inc. v. American Society for Aesthetic Plastic Surgery, Inc., 192
USPQ 170, 173 (TTAB 1976).

Collective trademarks and collective service marks indicate commercial origin of goods or
services just as regular trademarks and service marks do, but as collective marks they
indicate origin in members of a group rather than origin in any one member or party. All
members of the group use the mark; therefore, no one member can own the mark, and the
collective organization holds the title to the collectively used mark for the benefit of all
members of the group. An agricultural cooperative of produce sellers is an example of a
collective organization, which does not sell its own goods, or render services, but promotes
the goods and services of its members.
The collective organization might conduct advertising or other promotional programs in
which reference is made to the mark in order to publicize the mark and promote the business
of the members, but this would be merely informational use or a publicity display of the
mark.

GIs as Trademarks

Finally, under the U.S. regime, it is possible to protect geographical indications as
trademarks. Pursuant to well-established U.S. trademark law, geographic terms or signs are
not registrable as trademarks if they are geographically descriptive or geographically
misdescriptive of the origin of the goods (or services). If a sign is misdescriptive for the
goods/services, consumers would be mislead and/or deceived by the use of the sign on
goods/services that do not come from the place identified.
However, if a geographic sign is used in such a way as to identify the source of the
goods/services and over time, consumers start to recognize it as identifying a particular
company or manufacturer or group of producers, the geographic sign no longer describes
only where the goods/services come from, it also describes the "source" of the
goods/services. At that point, the sign has "secondary meaning" or "acquired distinctiveness."
The primary meaning to consumers is the geographic place; the secondary meaning to
consumers is the producing or manufacturing source. If a descriptive sign has "secondary
meaning" to consumers, the sign has a source-identifying capacity and is protectable as a
trademark. Because of this feature of U.S. trademark law, GIs can also be protected as
trademarks or collective marks. There are many signs that meet the TRIPS definition of a GI
that have been protected as trademarks in the United States for many years.

Opposition and Cancellation

If a party would be aggrieved by the registration of a trademark, service mark, certification
mark or collective mark or would be damaged by the continued existence of a U.S.
registration, that party may institute a proceeding at the TTAB, an administrative body at the
USPTO. The TTAB has jurisdiction over opposition and cancellation proceedings as well as
over appeals from an examining attorney's final refusal to register a mark in an application.
An opposition is a proceeding in which the plaintiff seeks to prevent the issuance of a
registration of a mark on the Principal Register.

"Any person who believes that he would be damaged by the registration" of a mark may file
an opposition thereto, but the opposition may be filed only in response to the publication of
the mark during the application in the Official Gazette of the USPTO. A cancellation
proceeding is a proceeding in which the plaintiff seeks to cancel an existing registration of a
mark. The proceeding may only be filed after the issuance of the registration. A petition for
cancellation may be filed by "any person who believes that he is or will be damaged by the
registration" of the mark.

The losing party at the TTAB level may appeal the TTABs decision to the Court of Appeals
for the Federal Circuit, a court with jurisdiction, inter alia, over intellectual property matters.
From that court, the losing party may appeal to the U.S. Supreme Court.

Common-Law Geographical Indications

Geographical indications also are protected through common law trademark law without
being registered by the USPTO. For example, the TTAB has held that COGNAC is
protected as a common-law (unregistered) certification mark in the United States. Institut
National Des Appellations v. Brown-Forman Corp, 47 USPQ2d 1875, 1884(TTAB 1998)
(Cognac is a valid common law regional certification mark, rather than a generic term,
since purchasers in the United States primarily understand the Cognac designation to refer
to brandy originating in the Cognac region of France, and not to brandy produced elsewhere,
and since opposers control and limit use of the designation which meets certain standards of
regional origin.)