Failed Battle of MP for GI Tag ‘Basmati’

The Geographical Indications of Goods (Registration and Protection) Act, 1999 (hereinafter “Act”) was enacted to provide for the registration and better protection of geographical indications relating to goods. A geographical indication (hereinafter “GI”) is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin[1]. In order to function as a GI, the qualities, characteristics or reputation of the product should be essentially due to the place of origin since the qualities depend on the geographical place of production, there is a clear link between the product and its original place of production[2].

In India, various types of aromatic rice including short and long grains are grown. However, BASMATI is the best known among these owing to its many unique cooking and eating properties attributable to the agro-climatic conditions prevailing in the geographical areas[3]. To protect these unique features of BASMATI rice, M/s. Heritage, an association of farmers of Haryana filed for GI tag in the year 2004 but the application was refused. Later, in the year 2008, The Agricultural and Processed Food Products Export Development Authority (hereinafter “APEDA”) filed an application for GI tag of Basmati rice. The Geographical Indication Registry approved the tag for the states of Punjab, Haryana, Himachal Pradesh, Delhi, Uttarakhand and parts of Western Uttar Pradesh and Jammu & Kashmir.

Recently, the state of Madhya Pradesh filed an application for a GI tag on Basmati Rice for its thirteen districts. Madhya Pradesh claimed that the rice grown in the thirteen districts is the traditional BASMATI and therefore, it must be granted the GI tag. One of the factors that are to be considered before granting of a GI tag is the element of reputation and the subsequent public perception gained by the goods. The State of Madhya Pradesh failed to establish that there was public perception. The State could not establish the facts with corroborative evidence to show that the aromatic rice was also grown in Madhya Pradesh[4]. It failed to prove that the origin of the rice was from their state which is a fundamental factor required for protection as a GI. The APEDA alleged that the rice produced in Madhya Pradesh did not have all the required characteristics of basmati – like long, slender kernels with high length to breadth ratio, an exquisite aroma, sweet taste, soft texture, delicate curvature, intermediate amylase content, high integrity of grain on cooking and linear kernel elongation with least breadth wise swelling on cooking[5]. It is important to prove that the product indicates the origin of the product i.e. Indo-Gangetic Plain to seek protection under the Act. But the State of Madhya Pradesh was unable to establish that it is a part of Indo-Gangetic plain which was an essential to prove that the rice produced in the thirteen districts of MP is the traditional grown rice. Therefore, the application was rejected by the Registry. The rejection of application means that the rice produced in Madhya Pradesh can no longer be sold under the name ‘Basmati Rice’ and thereby does not give protection and  the rights that it would have acquired if the GI tag was granted to the State.

The Geographical Indication Registry is cautious before granting a geographical indication tag to any product so as to prevent a situation of product generic idée i.e. a product getting generic making it no longer protected under the Act. For instance, protection cannot be given to Pashmina as it has become generic. Therefore, the registry have to be careful while granting protection and increasing the area of origin of the product as that would be detrimental to the existing GI holders and it can lead to lose of reputation of BASMATI in world market. The application of Madhya Pradesh was rejected so as to prevent a situation of making BASMATI rice a generic product that would amount to lose of market and reputation of BASMATI.

The entire matter leads us to a pertinent question whether a government can hold a GI? The recent trend shows that the Registry has granted GI to government. For instance, West Bengal holds a GI tag for ‘Banglar Rosogolla’. Section 21 of the Act provides for the rights that are conferred to the registered proprietor by registration. Section 2(n) of the Act defines ‘registered proprietor’ in relation to a GI, as any association of persons or of producers or any organization for the time being entered in the register as proprietor of the GI. To address the question of whether a government can hold a GI, the Government has to be a registered proprietor. Section 2(n) uses the word ‘association of persons or producers’ and ‘any organization’. The Government does not qualify as ‘an association of persons or producers’. The Government can be qualified as ‘registered proprietor’ when the word ‘any organization’ is given a broader interpretation. It leaves us with the question whether it is justifiable to give a broader interpretation to the term ‘organization’ to broaden the contours of the definition of registered proprietor?

Author: Ankita Aseri,  Legal Intern at IP and Legal Filings  and can be reached at support@ipandlegalfilings.com.

References:

[1]http://www.wipo.int/geo_indications/en/

[2]http://www.wipo.int/edocs/pubdocs/en/geographical/952/wipo_pub_952.pdf

[3]http://ipindiaservices.gov.in/GI_DOC/145/145%20-%20Statement%20of%20Case%20-%2026-11-2008.pdf

[4]https://www.financialexpress.com/industry/madhya-pradesh-loses-gi-tag-claim-for-basmati-india-may-ask-pakistan-to-check-farming/1103234/

[5]https://timesofindia.indiatimes.com/india/madhya-pradesh-loses-basmati-war-fails-to-get-gi-tag/articleshow/63334747.cms

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