Chapter 17.12  
2020 Revised Edition  C 
T 
PROTECTION OF GEOGRA PHICAL 
INDICATIONS ACT   
 Protection of Geographical Indications Act    CAP.17.12 Arrangement of Sections  
 
 
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 C 
T 
PROTECTION OF GEOGRA PHICAL INDICATIONS 
ACT  
Arrangement of Sections  
Section  
PART I - PRELIMINARY  5 
1 Short title and commencement ................................ ................................ .........  5 
2 Act binds the Crown  ................................ ................................ ........................  5 
3 Interpretation  ................................ ................................ ................................ .... 5 
PART II - PROTECTION OF GEOGRAPHICAL INDICAT IONS  6 
4 Civil proceedings  ................................ ................................ .............................  6 
5 Scope of Protection  ................................ ................................ ..........................  7 
6 Homonymous geographical indications for wines  ................................ ...........  7 
7 Exclusion from Protection  ................................ ................................ ...............  7 
8 Penalty  ................................ ................................ ................................ .............  8 
PART III - REGISTRATION OF GEOG RAPHICAL INDICATIONS  8 
9 Application for registration  ................................ ................................ ..............  8 
10 Contents of Appli cation  ................................ ................................ ...................  8 
11 Processing of application  ................................ ................................ .................  8 
12 Right of use  ................................ ................................ ................................ ...... 9 
13 Cancellat ion and rectification of registration  ................................ ...................  9 
14 Registers ................................ ................................ ................................ .........  10 
PART IV - ADMINISTRATION  10 
15 Gazetting of publications  ................................ ................................ ...............  10 Arrangement of Sections   CAP.17.12  Protection of Geographical Indications Act  
 
 
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 16 Corrections of mistakes and extension of time  ................................ ..............  10 
17 Exercise of discretionary power s ................................ ................................ ... 11 
18 Jurisdiction of the Court  ................................ ................................ .................  11 
19 Appeals to the Minister  ................................ ................................ ..................  11 
20 Regulations  ................................ ................................ ................................ ..... 11 
PART V - SPECIAL PROVISIONS C ONCERNING MARKS AND 
EXCEPTIONS  11 
21 Misleading trademarks  ................................ ................................ ...................  11 
22 Trademarks conflicting with a geographical indication for wines and 
spirits  ................................ ................................ ................................ ..............  12 
23 Exceptions regarding prior users  ................................ ................................ .... 12 Protection of Geographical Indications Act    CAP.17.12 Section  1 
 
 
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 C 
T 
PROTECTION OF GEOGRA PHICAL INDICATIONS 
ACT  
AN ACT TO MAKE PROVI SION FOR THE PROTECT ION OF 
GEOGRAPHICAL INDICAT IONS1 
Commencement [1 September 2008 ]2 
PART I - PRELIMINARY  
1 Short title and commencement  
(1) This Act may be cited as the Protection of Geographical Indications Ac t. 
(2) This Act  shall come into operation on a date to be proclaimed by His 
Majesty in Council.  
2 Act binds the Crown  
This Act  binds the Crown.  
3 Interpretation  
In this Act, unless the context otherwise requires  — 
“Court ” means the Supreme Court of Tonga;  Section  4  CAP.17.12  Protection of Geographical Indications Act  
 
 
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 “geographical area ” means the territory of the country, or region or 
locality in that territory as the case may be which constitutes the 
geographical origin of the goods ; 
“geographical indication ” means an indication which identifies a good as 
originating in the territory of a country, or a region or locality in that 
territory, where a given quality, reputation or other characteristic of the 
good is essentially attributab le to its geographical origin;  
“good ” means any natural or agricultural product or any product of 
handicraft or industry;  
“Minister ” means the Minister responsible for commerce ;3 
“producer ” means  — 
(a) any producer of agricultural products or any other per son 
exploiting natural products;  
(b) any manufacturer of products of handicraft, or industry; and  
(c)      any trader dealing in the said products ; 
“register ” means the Register of Geographical Indications maintained 
under section 14;  
“Registrar ” means the  Registrar of Industrial Property holding office in 
terms of section 37 of the Industrial Property Act.4 
PART II  - PROTECTION OF GEOGRA PHICAL 
INDICATIONS  
4 Civil proceedings  
Any interested person and any interested group of producers or consumers may 
institute proceedings in the Court to prevent, in respect of geographical 
indications  — 
(a) the use of any means in the designation or presentation of a good 
that indicates or suggests that the good in question originates in a 
geographical area other than the t rue place of origin in a manner 
which misleads the public as to the geographical origin of the good;  
(b) any use which constitutes an act of unfair competition within the 
meaning of the Protection of Unfair Competition Act; or  
(c) any use in identifying wi nes for wines not originating in the place 
indicated by the geographical indication in question or identifying 
spirits for spirits not originating in the place indicated by the 
geographical indication in question, even where the true origin of Protection of Geographical Indications Act    CAP.17.12 Section  5 
 
 
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 the goods is  indicated or the geographical indication is used in 
translation or accompanied by expressions such as “kind”, “type”, 
“style”, “imitation” or the like , 
and in proceedings under this section, the Court may, in addition to issuing an 
injunction, award damag es and grant any other civil remedy or relief as it shall 
deem fit.  
5 Scope of Protection  
Protection under this Act shall be available  — 
(a) regardless of whether a geographical indication has been registered 
provided, however, that registration of a geogr aphical indication 
under Part III of this Act shall, in any proceedings under this Act, 
raise a presumption that such indication is a geographical 
indication; and  
(b) against a geographical indication which, although laterally true as 
to the territory, reg ion or locality in which the goods originate, 
falsely represents to the public that the goods originate in another 
territory.  
6 Homonymous geographical indications for wines 
In the case of homonymous geographical indications for wines, protection shall 
be accorded to each subject to paragraph (b) of section 5. In cases of permitted 
concurrent use of such indications, the Registrar shall determine the practical 
conditions under which the homonymous indications in question will be 
differentiated from each oth er, taking into account the need to ensure equitable 
treatment of the producers concerned and that consumers are not misled.  
7 Exclusion from Protection  
The following shall not be protected as geographical indications  — 
(a) indications which do not corresp ond to the definition of 
“geographical indication”;  
(b) indications which are contrary to public order or morality;  
(c) geographical indications which are not or cease to be protected in 
their country of origin, or which have fallen into disuse in that 
country. Section  8  CAP.17.12  Protection of Geographical Indications Act  
 
 
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 8 Penalty  
Any person who intentionally performs any act in contravention of this Act 
commits an offence, and is liable upon conviction to a fine not exceeding $5,000 
or to imprisonment for a term not exceeding 5 years or to both.  
PART III  - REGISTRAT ION OF GEOGRAPHICAL 
INDICATIONS  
9 Application for registration  
(1) The application for registration of a geographical indication shall be filed 
with the Registrar.  
(2) Any natural person, competent authority or legal entity carrying on an 
activity as a pro ducer in the geographical area specified in the application, 
with respect to the goods specified in the application, as well as groups of 
such persons shall have the right to file an application.  
10 Contents of Application  
The application shall specify  — 
(a) the name, address and nationality of the natural person or legal 
entity filing the application, and the capacity in which the applicant 
is applying for registration;  
(b) the geographical indication for which registration is sought;  
(c) the geographical area to which the geographical indication applies;  
(d) the goods for which the geographical indication applies; and  
(e) the quality, reputation or other characteristic of the goods for which 
the geographical indication is used;  
and shall be subject to the payment of the prescribed fee.  
11 Processing of application  
(1) The Registrar shall examine whether the application complies with the 
requirements of sections 7, 9(2) and 10 and the regulations pertaining 
thereto.  
(2) Protection of Geographical Indications Act    CAP.17.12 Section  12 
 
 
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 (a) Where the Registrar finds that the  conditions referred to in 
subsection (1) hereof are fulfilled, he shall cause the application, as 
accepted, to be published in the Gazette.  
(b) Any interested person or competent authority may, within the 
prescribed period and in the prescribed manner, gi ve notice to the 
Registrar of opposition to the registration of the geographical 
indication on the grounds that one or more of the requirements of 
sections 7, 9(2) and 10 are not fulfilled.  
(c) The Registrar shall send a copy of such a notice to the applic ant, 
and, within the prescribed period and in the prescribed manner, the 
applicant shall send to the Registrar a statement to the opposition to 
his application; if he does not do so, he shall be deemed to have 
abandoned the application.  
(d) If the applican t sends a counter -statement, the Registrar shall 
furnish a copy thereof to the person giving notice of opposition and, 
after hearing the parties, if either or both wish to be heard, and 
considering the merits of the case, shall decide whether the 
geographi cal indication should be registered.  
(3) Where the Registrar finds that the conditions referred to in subsection (1) 
are fulfilled, and either  — 
(a) the registration of the geographical indication has not been opposed 
within the prescribed time limit; or  
(b) the registration of the geographical indication has been opposed and 
the outcome has been decided in the applicant ’s favour,  
he shall register the geographical indication, publish a reference to the 
registration and issue to the applicant a certificate of registration.  
12 Right of use  
Only producers carrying on their activity in the geographical area specified in 
the register shall have the right to use a registered geographical indication, in the 
course of trade, with respect to the products specified i n the register, provided 
that such products possess the quality, reputation or other characteristic specified 
in the Register.  
13 Cancellation and rectification of  registration  
(1) Any interested person may request the Court to order  — 
(a) the cancellation  of a registration of a geographical indication on the 
ground that it does not quali fy for protection as such having regard 
to section 7;  Section  14  CAP.17.12  Protection of Geographical Indications Act  
 
 
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 (b) the rectification of a registration of a geographical indication on the 
ground that the geographical area specifie d in the registration does 
not correspond to the geographical indication, or that the indication 
of the products for which the geographical indication is used or the 
indication of the quality, reputation or other characteristic of such 
products is missing or unsatisfactory.  
(2) In any proceedings under this section, notice of the request for 
cancellation or rectification  — 
(a) shall be served on the person who filed the application for 
registration of the geographical indication or his successor in title; 
and 
(b) shall, by a publication in the Gazette be given to all persons having 
the right to use the geographical indication under section 12.  
(3) The persons referred to in subsection (2) and any other interested person 
may, within a period which shall be sp ecified by the Court in the said 
notice, apply to join in the proceedings.  
14 Registers  
The Registrar shall maintain a Register of Geographical Indications in which all 
the recordings provided for in this Act shall be entered which may be consulted 
by any person who may obtain copies of any entry subject to prescribed fees and 
conditions.  
PART IV - ADMINISTRATION  
15 Gazetting of publications  
The Registrar shall publish in the Gazette all the publications provided for in this 
Act. 
16 Corrections of mistakes and extension of time  
(1) The Registrar may, subject to any provision in the regulations, correct any 
mistake in any application or document filed with his Office or in any 
recording effected pursuant to this Act, or the regulations.  
(2) If the Registrar i s satisfied that the circumstances justify it, he may, upon 
receiving a written request, extend the time for doing any act or taking any 
proceeding under this Act and the regulations, upon notice to parties 
concerned and upon such terms as he may direct. T he extension may be Protection of Geographical Indications Act    CAP.17.12 Section  17 
 
 
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 granted though the time for doing the act or taking the proceeding has 
expired.  
17 Exercise of discretionary powers  
The Registrar shall give any party to a proceeding before him an opportunity of 
being heard before exercising adversely to that party any discretionary power 
vested in him by this Act or the regulations.  
18 Jurisdiction of the Court  
The Court shall have jurisdiction in respect of any matter arising under this Act.  
19 Appeals to the Minister  
Any decision taken by the Registr ar under this Act may be the subject of an 
appeal to the Minister by any interested party and such appeal shall be filed 
within two months of the date of the decision.  
20 Regulations  
(1) The Minister may, with the consent of Cabinet, issue regulations 
prescribing details for the implementation of this Act.  
(2) The Regulations may provide for the payment of fees in connection with 
applications for the registration of geographical indications and matters 
related thereto.  
PART V  - SPECIAL PROVISIONS C ONCERNING  MARKS 
AND EXCEPTIONS  
21 Misleading trademarks  
The Registrar shall, ex officio  or at the request of an interested party, refuse or 
invalidate the registration of a trademark which contains or consists of a 
geographical indication with respect to goods not originating in the geographical 
area indicated, if use of the indication in the trademark for such goods in Tonga 
is of such a nature as to mislead the public as to the true place of origin.  Section  22  CAP.17.12  Protection of Geographical Indications Act  
 
 
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 22 Trademarks conflicting with a geographical indication for wine s and 
spirits  
The registration of a trademark for wines which contains or consists of a 
geographical indication identifying wines or of a trademark for spirits which 
contains or consists of a geographical indication identifying spirits shall be 
refused or invalidated by the Registrar ex officio  or at the request of an interested 
party, with respect to wines or spirits not having this origin.  
23 Exceptions regarding prior users  
(1) Nothing in this Act shall prevent continued and similar use in Tonga of a 
particular geographical indication of another country identifying wines or 
spirits in connection with goods or services by any nationals of Tonga or 
persons domiciled in Tonga who have used that geographical indication in 
a continuous manner with regard to th e same or related goods or services 
in the territory of Tonga either  — 
(a) for at least 10 years preceding 15 April 1994; or  
(b) in good faith preceding that date.  
(2) Where a trademark has been applied for or registered in good faith, or 
where rights to a  trademark have been acquired through use in good faith 
either  — 
(a) before the date of entry into force of this Act; or  
(b) before the geographical indication is protected in its country of 
origin, this Act shall not prejudice the registration of or the v alidity 
of the registration of a trademark, or the right to use a trademark, on 
the basis that such a trademark is identical with, or similar to, a 
geographical indication.  
(3) Nothing in this Act shall apply in respect of a geographical indication of 
any country with respect to goods or services for which the relevant 
indication is identical with the term customary in common language as the 
common name for such goods or services in Tonga or in respect of a 
geographical indication of any other country with respect to products of 
the wine for which the relevant indication is identical with the customary 
name of a grape variety existing in Tonga as of January 1, 1995.  
(4) Any request for relief made under Part II of this Act in connection with 
the use or regis tration of a trademark must be presented within 5 years 
after the adverse use of the protected indication has become generally 
known in Tonga or after the date of registration of the trademark in 
Tonga, provided that the trademark has been published by tha t date, if 
such date is earlier than the date on which the adverse use became 
generally known in Tonga and provided that the geographical indication is 
not used or registered in bad faith.  Protection of Geographical Indications Act    CAP.17.12 Section  23 
 
 
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 (5) This Act shall not prejudice the right of any person to use, in  the course of 
trade, that person ’s name or the name of that person ’s predecessor in 
business, except where such name is used in such a manner as to mislead 
the public.  
 Section  23  CAP.17.12  Protection of Geographical Indications Act  
 
 
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ENDNOTES  
1 Act 17 of 2002  
 Amended by Act 5 of 2012, commencement 30 July 2012  
2 See GS 35/08  
3 Amended by Act 5 of 2012  
4 Cap. 40.16