Guest Post: APEDA empowered to register Basmati as a GI

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.