PublicationsGEOGRAPHICAL INDICATOR AND BASMATI’S INDO-PAK FEUD

INTRODUCTION

Across the globe, India and Pakistan are known to be fierce archrivals. Be it politics, cricket, Kashmir or the numerous wars fought since the end of the colonial era. Now, another little battle is brewing behind the scenes for the rights to the ‘Geographical Indicator’ (GI) in the European Union (E.U.) for the famous rice grain – ‘Basmati’. This is not the first time that the two nations have disagreed at the E.U. for a GI. In 2008, there was disagreement regarding the world-renowned ‘Pashmina’ wool and its items. Pakistan had opposed India’s application for the GI back then also, stating that the wool was produced in their territory as well. Eventually, the GI was ruled in favour of India.[1]

In the same year, both nations had considered a ‘joint application’ for the Basmati rice in the E.U. Subsequently, however, tensions between the two nations were at a fever pitch following the terror attacks of 26/11 in Mumbai and thus, the application never reached fruition. Then, in July 2018, an application was lodged at the European Commission by India for ‘protected geographical indication’ or PGI[2]. The outcome of this can have major financial ramifications for both nations.

WHAT IS GI AND HOW IS IT DETERMINED?

There is no consolidated definition of GIs, but simply put, they are indications of places used to identify and vouch for the quality, reputation, and/or any other necessary characteristics of products. However, this right does not exclude others from making the same product using the same techniques for which the protection is provided. GIs are usually used for agricultural products, foods, spirit, handicraft, wine, and industrial products – amongst other items[3]. Thus, it is a form of an intellectual and cultural right given to domestic producers because it is expected and proved that a direct link exists between the culture, quality, and place of the product. Hence, GIs help distinguish quality and characteristics for consumers. Under Trade-Related Aspects of Intellectual Property Rights (TRIPS), Article 22, GI is described as:[4]

 “…for the purposes of this Agreement, 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 characteristics of the good is essentially attributable to its geographic origin.”

In India, Section 2(1)(e) of the Geographical Indications of Goods (Registrations & Protection) Act, 1999, defines GIs as[5]:

…” an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristics of such goods is essentially attributable to its geographical origin and in the case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be.”

 GIs are determined by how specific aspects of the “geography” attach significance and often provide the distinctive factor to the product with a cultural and traditional context of that region. The product from the region must have a quality and reputation to uphold and this may be built over decades and centuries or could be determined through other factors – such as the availability of certain materials only in that region. [6]

HOW IS GI DIFFERENT FROM TRADEMARK?

Before delving into the details of the Indo-Pak discord, we must distinguish trademarks from geographical indicators to be able to fully comprehend the fight for Basmati’s rights. Trademarks often use the name of places and regions to enhance the marketability and reputation of a particular brand name, and this may sometimes cause confusion between GI and Trademark. Some key points that help distinguish the two are as follows:[7]

-Trademarks are signs, logos, names, etc. that help distinguish goods or services. GIs, however, only signifies the origin of the good and vouch for its quality and reputation. e.g.: Darjeeling Tea, Pashmina wool.

-Trademarks are for single entities, whereas GIs are protection given to a group of manufacturers of a particular region dealing in a particular item. Usually, historically, this “item” would have originated in that region.

-A trademark has the freedom to be a word, letter, numerical, device, colour combinations, sound, or a combination of all or some of these. On the contrary, a GI can simply be names or symbols reflective of a particular region or place.

-The uniqueness of trademarks is determined by their distinctness to others, and this is a result of human creativity and intellect. They can be suggestive, descriptive, or random. GIs, however, has no human element and are often distinguished on criteria beyond the human element.

-Both are governed by different statutes in India: Trademarks by the Indian Trademarks Act 1999 and GIs by Geographical Indications of Goods (Registration & Protection) Act 1999.

THE RIGHTS TO BASMATI RICE: WHO HOLDS THE GI?

Regulation (EU) No. 1151/2012[8] gives any country the option to oppose a GI within three months of its publication in the Official Journal of the E.U. In September 2020, the Rice Exporters Association of Pakistan or REAP took opposition to India’s application at the E.U. The reasons given by REAP were deemed to be admissible by the European Commission in March 2021[9]. India’s contention for GI was that Basmati is a “long-grain, aromatic rice” that has a cultural, traditional, scientific, and culinary significance with India throughout history. However, it is pertinent to note that in the application to the E.U., India has not claimed the sole rights to Basmati’s production. Pakistan is the second-largest producer of Basmati and feared that a GI in favour of India would hamper its export of the rice in the E.U. market[10]. Basmati has its origins in the Gangetic Plains of the Himalayas. Today, this region consists of Himachal, Punjab, Haryana, Uttarakhand, U.P., Delhi, and J&K. However, the rice is also cultivated in the Kalar region that lies between the rivers Ravi and Chenab in Pakistan’s Punjab; hence, their claim.[11]

Pakistan holds about 35% production of Basmati, whilst the rest lies with India. Although, as aforementioned, India has not claimed “exclusivity” with the GI application – a grant of the same to India is likely to influence the value of the Pakistani produce on the international market. The E.U. may simply grant a GI to Indian Basmati if Pakistani claims are found illegitimate. India has mentioned in its application that the rice is produced in the “region of the Indian sub-continent” which is evidence of the fact that it does not seek exclusivity.[12]

Pakistan’s GI laws were enacted in March 2020 and they grantedBasmati a domestic GI in March 2021, whilst India granted the GI to the aforementioned states in 2016. Though domestic GI registration is a prerequisite for filing an application for GI at the E.U., a complaint by a third country, natural or legal person having a legitimate interest in the item under dispute, does not need domestic registration to file such opposition. Pakistan may also be asked to carefully and objectively demarcate the area they claim produces Basmati, other than India[13]. Pakistan’s annual return from Basmati is around $2.2 billion, while India’s more than thrice that amount ($6.8 bn)[14]. Thus, the financial impact is gigantic.

Pakistan’s Possible Objections under Article 10 of Regulation 1151/2012

Article 10 of the Regulation (EU) No. 1151/2012 provides grounds for opposition. Article 10(1)(c), particularly, asks the opposing party to demonstrate how GI registration would adversely impact the existence of products that have ‘been legally on the market for at least five years preceding the date of publication’. In a 2004 European Council decision, duty-free import of some Basmati varieties was permissible from Pakistan into the E.U. which they may use to seek acknowledgment that they too have a right to a GI. Additionally, in the RiceTec case, wherein RiceTec – a private rice-maker from the U.S.A.- sought patents to Basmati, India while embroiled in the litigation, conceded that Basmati was made in Pakistan as well. Thus, Pakistan may use this concession against India to substantiate its stance further.

Through Article 10(1)(a), Pakistan may find a procedural loophole(s)violative of Articles 5 and 7 of the Regulation – which deal with eligibility requirements and product-specific requirements respectively. Prima facie, however, India seems to have complied with procedural requirements.

This leaves two more grounds under Article 10 – 10(1)(b) and 10(1)(d). The first deals with the conflict of names with the grounds mentioned under Article 6(2), (3) & (4). It is safe to assume that the term ‘Basmati’ does not conflict with any of the restrictions mentioned in Article 6. The latter, 10(1)(d), deals with a situation through which a may be established that ‘Basmati’ is a generic term. The Agricultural and Processed Food Products Export Development Authority (APEDA) has made repeated efforts for GI registrations worldwide to prevent dilution of the term“Basmati”.Thus, this should ensure that Basmati does not become just a “generic” term. Additionally, Amendment to the APEDA Act led to the inclusion of Section 10A as follows[15]:

“Without prejudice to any law for the time being in force, it shall be the duty of the Authority to undertake, by such measures as may be prescribed by the Central government for registration and protection of the Intellectual Property rights in respect of Special products in India or Outside India.”

 This provision can help India in protecting Basmati domestically and overseas. It has been a fight that has involved hundreds of crores and countless litigations.

Current Scenario

The application for Basmati’s GI is currently at the consultation stage at the E.U., with consultations due mid-to-late next month. The purpose of these consultations is for the parties to elucidate upon their concerns and reach an amicable solution. This feud is likely to disrupt the export of the famous (or, now infamous!) rice grain for both nations. At present, a joint application for a GI seems the most plausible solution. It is practical and mutually beneficial – both economically and politically – since India and Pakistan are the only Basmati producing countries. This ‘joint application’ will not be unprecedented as the “Maasvallei Limburg” (wine) has been granted a transnational GI with both Belgium and The Netherlands[16].

CONCLUSION

Presently, it is a waiting game. A joint application still seems distant but Pakistan would not bow down without a fight. If India is granted a GI for Basmati, it would be able to trigger Article 13 ‘protections’ under the Regulation (EU) No. 1151/2012 which will give it an upper hand in terms of protecting the GI. Consequently, this would mean that Pakistan would be unable to sell its Basmati rice with the term “Basmati” in its labeling. For example, they will be prohibited sale with a label saying “Pakistani Basmati” or “Basmati Produced in Pakistani” or any other such indicator.

A GI would enable Indian producers to demand higher than usual prices from the E.U. market. If the joint application is not agreed upon, both nations could be embroiled in a long review process in the European courts that would harm the Basmati industry of both nations. September 2021 is crucial, and any failure to reach an amicable solution next month could lead to yet another India-Pakistan feud that will linger on beyond the borders.

REFERENCES

[1]Varsha Jhavar, ‘India Vs. Pakistan: Dispute over Basmati’s GI Registration in the European Union’, (SpicyIP, 18 November 2020) <https://spicyip.com/2020/11/india-vs-pakistan-dispute-over-basmatis-gi-registration-in-the-european-union.html> accessed on 06 August 2021

[2]Ibid

[3]World Intellectual Property Organisation, Frequently Asked Questions: Geographical Indications <https://www.wipo.int/geo_indications/en/faq_geographicalindications.html> 06 August 2021

[4]Trade-Related Aspects of Intellectual Property Rights (TRIPS), Article 22

[5]Geographical Indications of Goods (Registrations & Protection) Act 1999, Section 2(1)(e)

[6]Daniele Giovannucci, Tim Josling, William Kerr, Bernard O’Connor, May T. Yeung, ‘Guide to Geographical Indications’ (International Trade Cente, 2009) <https://www.origin-gi.com/images/stories/PDFs/English/E-Library/geographical_indications.pdf> accessed 07 August 2021

[7]Raja Selvam, ‘Intellectual Property Made Easy: Trademarks vs Geographical Indicators’ (Selvam & Selvam, 15 July 2014) <https://selvams.com/blog/intellectual-property-made-easy-trademarks-vs-geographical-indicators/> accessed on 08 August 2021

[8]Regulation (EU) No. 1151/2012 of The European Parliament and of the Council

[9]Muireann Bolger, ‘India Escalates Bid to Gain GIs for Basmati’, (World Intellectual Property Review, 15 March 2021) <https://www.worldipreview.com/news/india-escalates-bid-to-gain-gis-for-basmati-21139> 08 August 2021

[10]Siddhant Biswakarma, ‘Who Owns Basmati Rice? India and Pakistan Battle for GI Rights’, (IP Watchdog, 06 July 2021) <https://www.ipwatchdog.com/2021/07/06/owns-basmati-rice-india-pakistan-battle-gi-rights/id=135213/> accessed on 08 August 2021

[11]Pooja Pillai, ‘Explained: Why India and Pakistan are Battling over Basmati’, (Indian Express, 17 June 2021) <https://indianexpress.com/article/explained/explained-india-and-pakistans-battle-over-basmati-7357044/> accessed on 09 August 2021

[12]Varsha Jhavar, ‘India Vs. Pakistan: Dispute over Basmati’s GI Registration in the European Union’, (SpicyIP, 18 November 2020) <https://spicyip.com/2020/11/india-vs-pakistan-dispute-over-basmatis-gi-registration-in-the-european-union.html> accessed on 06 August 2021

[13]Ibid

[14]Agencies, ‘Pakistan, India Agree over Basmati Ownership’ (Bangalore Mirror, 15 June 2021) <https://bangaloremirror.indiatimes.com/news/india/pakistan-india-agree-over-basmati-ownership/articleshow/83522234.cms>accessed on 09 August 2021

[15]APEDA Act, Section 10A

[16]Siddhant Biswakarma, ‘Who Owns Basmati Rice? India and Pakistan Battle for GI Rights’, (IP Watchdog, 06 July 2021)<https://www.ipwatchdog.com/2021/07/06/owns-basmati-rice-india-pakistan-battle-gi-rights/id=135213/> accessed on 09 August 2021