Guest Post: APEDA empowered to register Basmati as a GI


We bring you a guest post from Danish Sheikh, a law student from the Nalsar University of Law, Hyderabad, on a recent development involving Basmati, one of India’s most reputed geographical indications (yet to be registered in India though).

APEDA empowered to register Basmati as a GI

The Agriculture and Processed Food Products Exports Promotion Agency (APEDA) has been empowered by the government to register and protect intellectual property rights or similar rights including Geographical Indications (GI) for certain special agriculture products such as Basmati rice in India and elsewhere. The Union Cabinet on the 18th of this month approved the promulgation of the ordinance amending the APEDA Act giving it this authority. APEDA, is an autonomous statutory authority established in 1986 under the APEDA Act and sponsored by the Ministry of Commerce, to promote agricultural and processed food products from India.

While it was earlier unable to register Basmati rice as GI in view of ambiguity in the APEDA Act, which confined the Authority to undertake activities relevant to exports only, it can now, “with more statutory authority, initiate the process for the registration of Basmati rice, etc., as a geographical indication under the Geographical Indications of Goods (Registration and Protection) Act 1999”, said Information and Broadcasting Minister Priya Ranjan Dasmunshi.

This is the latest development in the Basmati saga, an arena that been the centre of much debate and discussion since the now famous RiceTec case. It would be pertinent at this point to step back and look at the various issues that presently surround the registration and protection of Basmati.

Failure of Heritage Foundation to bag GI status for Basmati

As reported by Spicy IP here, the application for GI status for Basmati by the Haryana-based Heritage Foundation in 2004 was rejected recently by the Registrar of the GI Registry, citing flaws and lack of relevant data. Apart from the Foundation’s inability to provide technical details and specific data relating to the specification of the product, identity and the geographical area where it has grown, it was also flawed in terms of representation, being represented mostly by mill owners and exporters.

Under the provisions of the GI Act, an application for registration of a GI may be made to the Registrar of GI by any association of persons or producers or any organization or authority representing the interests of the concerned goods. Now, with the APEDA being vested with the authority to apply for registration, the issue of locus may be resolved. It is these other technical details that the Registry cites, which the authority will have to watch out for when it puts forward its application.

Definitional Issues

These basically have arisen on 2 levels : Firstly, within the country between the farmers/millers/exporters and the government, and then, on the Indo-Pak level. Within India, (discussed by Spicy IP here) there have been problems with the 2003 notification by the Ministry of Agriculture, wherein 6 traditional varieties of Basmati rice were notified under the Seeds Act, 1966, which were the same as the 6 varieties that were notified by the Ministry of Commerce in the Export of Basmati Rice (Quality Control and Inspection) Rules, 2003.

Now, while adherence to these guidelines by Basmati exporters is important due to the risk of Basmati being considered a generic name and being denied protection, there are objections from the side of Indian farmers and millers who want a wider definition so as to increase the volume of the exports of other rices which don’t fall under the definition of Basmati and subsequently earn more money. The argument on the other side remains hinged on the issue of dilution of exclusivity, with fears that further dilution will rub out the premium image on basmati in the international market.

Pusa 1121

Following the ban on non-Basmati rice exports earlier this year, which resulted in excluding the Pusa 1121 variety, the Government came out with a new definition for Basmati in June this year
which expanded the earlier one by including in the genealogy a Basmati variety (traditional or evolved) notified under the Seed Act 1966, to pass the “basmati quality genes” into the new evolved varieties, thus paving the way for inclusion of evolved varieties of Basmati. While this new definition was initially greeted with enthusiasm by Pusa 1121 exporters which would then come under the ambit of the definition, the Centre has been reluctant to include Pusa 1121.

A September 7 notification by the Director General of Foreign Trade, which, while lifting the export ban on the Pusa 1121 variety, has continued to recognize it as non-Basmati rice. As an editorial in the Business Standard notes , the Pusa 1121 is regarded as one of the finest evolved types of basmati, and one that has dominated the global basmati bazaar for the past few years. Having secured a place in the Limca Book of World Records as the longest-cooking, slender-grained aromatic rice, this variety has been fetching higher prices than even the best traditional basmati rice on offer from India and Pakistan.. Among the adverse impacts of non-notification would be the losses that the Pusa 1121 variety will suffer when placed alongside other, much cheaper “non-Basmati” rice. While the Pusa 1121 variety sells for $2000 per tonne, it would be placed on a shelf with non-Basmati rice from Vietnam, Thailand, and Pakistan which has been selling for $400 to $700 per tonne. This unfortunate reluctance on the part of the government to notify the variety is being attributed to the fact that it is currently under the national Basmati trial (which will ascertain whether any new variety, if developed by taking genes from Pusa 1121, contains major characteristics of Basmati like elongation and aroma), that generally takes two seasons to throw up final results, which means that even now exporters may have to wait a year for notification. This move still seems an ill-advised one, in the light of the impact on trade as well as the fact that the Agriculture Ministry had declared in May that Pusa-1121 met all the requirements for being notified as a Basmati variety, following which, there is little reason for the Commerce Ministry to disregard its opinion.

Across the Border

The amendment to the APEDA Act may be seen in counterpoint to the situation in Pakistan, where the Basmati Growers Association (BGA) has registered a trademark for Basmati, a decision challenged by APEDA and pending in appeal presently. Interestingly, the BGA faces challenges from within Pakistan itself, coming into conflict with the Rice Exporters Association of Pakistan (REAP), which maintains that it has the right to register the trade mark and had pointed out some conditions before registering the Basmati rice trademark which were not fulfilled by the BGA. The fact that Pakistan does not have a GI act exposes it to the limitations of a trademark as opposed to a GI, wherein a trademark may be owned by only one enterprise, while GIs can be used by several enterprises at the same time.

At the same time, there is the Joint Working Group of representatives from both the countries which is working at joint protecting of Basmati rice as GI. Currently, it is reckoned India holds 53 per cent share in the global market of Basmati rice and Pakistan the second slot with intense competition always simmering between the two exporters. GI status would prevent other nations from claiming the right to label or patent their rice as Basmati. While TRIPs does provide for such registration, and it is clearly in the interest of both countries to jointly guard the rice, the process is not as easy, with impeding factors including the aforementioned fact of Pakistan not having a GI Act, the inability of India and Pakistan to agree on a definition of what constitutes Basmati rice (while Pakistan’s focus is on lower prices, India’s is on the exclusivity of basmati, and for Pakistani basmati to be included in the GI application, the overall bar for basmati would have to be lowered), and of course, the constant flux in international politics that these negotiations remain subject to. Last year’s notification of Super Basmati for export by the Ministry of Commerce, which led the BGA to consider legal action against the notification, hasn’t exactly helped matters.

With the Joint Working Group having last met as far back as April, 2008, and the current situation with the Basmati trademark in Pakistan, it is important for APEDA to proceed quickly to the filing of the GI, keeping the definitional considerations in place.

A point to be noted here: it is distressing to see the careless usage of IP terminology being flung around by leading newspapers; you know there’s trouble when the sentence “patenting of Basmati as Geographical Indication” pops up in a reputed paper like the Hindu.

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

9 comments.

  1. AvatarVinay Kumar

    I am the lawyer repsenting “The Heritage”. i am shocked to see such a fasle, manipulated and forged news about the rejeciton of basmati application.

    Teh NGO is not at all represented by Exporters. it is farmers based NGO. It’s application is still pending ebfore teh Regsitrar, GI.
    I wish to initiate criminal proceedings agasint the perosn who published suhc a false blog.
    Please furnish the deatils of the perosn who has misrepresented and generated false rumours.

    it is a matter of record that the application is stil pending and is in process.

    (Vinay Kumar Jain)
    Advocate

    Reply
  2. AvatarShamnad Basheer

    Hold your horses Mr Jain,

    The blog posts in question linked back to the news items where these developments were first reported. So kindly study the posts thoroughly and the news items that they linked to before you plan to sue the wrong parties in your misplaced enthusiasm!

    Shamnad

    Reply
  3. AvatarAnonymous

    Jain Mahashay,
    Agar angrezi samajh me na aaye, to mai samjhaaye deta hoon. Basheer bhai ke kehna ka ye matlab hai ki apne ghodon ko sambhaaliye aur sue-sue karne ke chakkar me na padiye. Thoda control kijiye aur apne dimaag aur moti jaise aankhon ka sahi istemaal kijiye! chale aate hain sue-sue karne! Sue-sue karna hame bhi aata hai 🙂

    SpicyIP ka Shubhchintak

    Reply
  4. AvatarAnonymous

    Well put, SkS! “Apne ghodon ko sambhaaliye” and “sue-sue karna hame bhi aata hai”. Now why don’t we see more of these comments on this blog?

    AC

    Reply
  5. AvatarVinay Kumar Jain

    Dear Mr. Shamnad,

    instead of you jumping to such conclusions, it would be apprpriate to first udnerstand the gravity of your repoting.

    The GI application filed by “The Heritage” is still pending. Necesary amendments as desired were carreid out. The porcess has not completed yet. Mere reporting on hearsay will not alter its status.
    ALl such contrary reporting is absolutely false, misleading and concocted

    Reply
  6. AvatarShamnad Basheer

    Vinay,

    Once again, study the posts carefully before you come in and comment. Its the least that’s expected of someone who is apparently representing Heritage and wishes to take action against all of us!

    The first SpicyIP post on this issue clearly stated that the process was an ongoing one and that the preliminary objections may have either been procedural or substantive. Please see http://spicyipindia.blogspot.com/2008/07/geographical-indications-in-india.html

    I extract the relevant bits of what I’d stated in that post:

    “However, the Mint recently reported that an application for the mother of all GI’s “Basmati” is close to being rejected by the GI Registry in Chennai:

    “A seven-member consultative group headed by V. Ravi, the controller general of patents, design and trade marks, recently rejected an application for GI status for the rice variety filed by Karnal, Haryana-based Heritage Foundation in August 2004, citing flaws and lack of relevant data, said an official at the Union ministry of commerce and industry.

    Following the consultative group’s decision, the Geographical Indications Registry in Chennai has issued a notice to the Heritage Foundation asking it to show cause why its application should not be rejected. The hearing on the notice will be held before Ravi, who is also the registrar of the Geographical Indications Registry. “There were discrepancies in the application filed by Heritage Foundation,” said the commerce ministry official, who spoke on condition of anonymity because he is not authorized to speak with the media.”

    I am still unclear on whether or not this rejection was substantive or stemmed from procedural and other formal irregularities. As one can appreciate, it might be relatively easy to beef up the application and cure procedural infirmities. However, if this were a substantive rejection, then India is basically signaling to the world that Basmati is not worthy of GI protection!

    From the report, it appears that the applicant hadn’t worked hard enough in preparing a fool proof application and that the locus to file the GI application in question might have been an issue. The Mint report states:

    “The Heritage Foundation could not provide technical details and scientific data relating to specification of the product, identity and the geographical area where it is grown, the official added. The application was also flawed in terms of representation of basmati growers and farmers on the foundation, as it was represented mostly by mill owners and exporters, the official said.”

    I’m beginning to think that what you’re really upset about is the fact that we’ve asked pointblank as to whether or not the preliminary objections raised by the GI office stemmed from the fact that the application drafted by you was a badly prepared one. Is this the case? From the Mint report, it would appear so.

    If this is not the case, and you have evidence to prove otherwise (and satisfy your client that you are doing a decent job), you must then write to the Mint directly and let them know. That would be a far smarter way of doing things and getting results and ensuring that the client remains with you. Going after blogs without bothering to do your homework and reading through earlier posts etc will do your credibility as a lawyer more harm than good!

    Reply
  7. AvatarRajveer Singh

    Shamnad, it is very interesting to to read the arguments between you and Mr. Vinay. May I request both of you to put your intellect for the benefit of the real owner of the traditonal knowledge. We all know that how things are reported in press and their secondary use by the responsible blogs like SPICYIT (I found it very informative and useful) it is expected that at least you should give Mr. Vinay credit to highlight misreporting ( not by blog but somewhere elese).

    We really made mockery of the GI registration in India. The worst part is that no body really undestands why GI, including the registry for GI.From banana to diesel engine everything qualify for GI.
    There are certain basic elements of GI none of these have been followed in the GI registration including Darjeeling TEA. I am afraid that most of the the GI registered will not stand in the the court of Law in case of misuse. I request all legal Community including Mr. Jain to highlight all such issues and make GI better tool for traditional knowledge empowerment.
    Coming to Basmati issue, it is very clear that Government of India is not interested in ownership of any high value GI to be owned by the stakeholders. When application was first filled for Basmati Rice by Heritage since than you can see a systematic attitude problem. APEDA was not mandated for GI and most of the private bodies representing rice prodction are not empowered to take such a step. I really want to congratulate Mr. Vinay for his initiative to act so intellegently by forming Heritage represented by producers and Processors of rice in Haryana. It is the duty of the GI body to take up such issues more proactivly otherwise they will keep on complaining in diffrent international bodies/ countries for the ownership of GIs. Please read what Pakistan has done to Basmati GI at http://www.hindu.com/2009/01/02/stories/2009010260111100.htm

    Rajveer Singh

    Reply
  8. AvatarVinay Kumar Jain, GI Consultant

    Dear Mr. Basheer,

    Consultative Committee is only an advisory body to GI Registry and its recommendations cannot be constituted to be a decision of Registrar, GI. In case of Heritage application, its recommendation were one sided i.e. without hearing applicant.

    It will to too big in law to assume such recommendation to be legally tenable. Hence now they stand quashed. Examination report shall follow. I wish all genuinely interested should join hands for this noble cause of Basmati.
    For more, you may see iprjuris.blogspot.com

    Reply

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