The GI Registry recently issued an order on the Payyannur Pavithra Ring, a traditional adornment from north Kerala, stating that “the use of sentimental of religion does not bar for registration.” Payyannur Pavithra Ring, Artisans & Devp versus K Balakrishnan [2009 (41) PTC 719 (GIG)] – unfortunately I cannot find an online copy of this order – has observations which would have been more interesting than they are at present had they been better phrased. [Image from here] FYI, for those not in the know, “pavithra” means ‘pure’ in Sanskrit and Malayalam, which will put some things in perspective below.
The Payyannur Pavithra Ring application was No. 6 in the history of GI applications in this country, and so fairly early to jump in the fray. Admittedly, it’s also taken its own sweet time to proceed to registration, for various reasons. And this will take a bit of story-telling.
1. Applicants are entitled to registration
The first objection to the application was that the applicants, a registered society of ring artisans, were not representative of the producers of the GI and not entitled to registration. This was not sustained, but to my mind, the registry’s reasons were not satisfactorily explained in the order. The order explains, albeit vaguely, the applicant’s defence for claiming rights to the application, i.e., that the artisans are special goldsmiths which have some special characteristics and have to observe discipline during the of the product, etc., but fails to place on record why the applicant’s entitlement was challenged.2. “Use of sentimental of religion does not bar registration”
Secondly, the opponents raised the issue that the ring was “a sentimental issue of the public and could not be considered a GI product”.
In content that seems to have been picked straight from the http://www.payyanur.com website (or vice versa – and thereby making my typist’s life simpler!), the order goes on to state that the:
“Payyanur Pavithra Mothiram is a uniquely crafted ring shaped like a knot and considered being a sacred ornament. Usually Payyanur Pavithram is being made of Gold and Silver. The Pavithram is to be worn on the right ring finger by the person performing Vedic Karmas. It is believed that this ring will bring luck and grace to anyone who wears it with the deep devotion…”
And it continues for a few paragraphs more about the ritualistic and religious associations of the ring, which you can read here.
[Image from here]The opponent “also manufacturing the Payyanur Pavithra Ring and before wearing by the concerned person some pooja to be performed before the temple which is represented by the society of the applicants and the part of the cost of the product is devoted to the temple [associated with the wearing of the ring]”.
From this and preceding paragraphs, the order dismissing the opponent’s challenge, concludes thus:
“It means the ring made of gold or silver in the region is the subject matter of the GI. This is regularly in use since the Year 1011. After going through the arguments … the ring is the product available in the particular region and famous in the name of Payyanur Pavithra Ring having specific quality. The applicant has already submitted the certified Map in support of the Application. In view of that the product Ring is the goods of GI and use of sentimental of religion does not bar for registration.”
This part of the Registry’s order, which may set a precedent in other GI products with a tangential religious element, may strike a raw chord with those who have been arguing otherwise, e.g., in the case of the Tirupati laddu GI.
I offer a poorly thought out, quickly written, different, non-religious way of looking at the two grants – suppose we classify Tirupati Laddus as fast-moving consumer goods, which they are, and therefore in larger volumes, and have a larger number of manufacturers spread over larger territory, thereby diluting the identity of the “original” manufacturers and so on; versus the ring which is a durable product, therefore significantly lower volumes and fewer manufacturers, with less dilution; does such an explanation, applicable to any product which may have religious association, help defend the grant of a GI to the ring and object to the grant of the laddu? Your thoughts.
3. Ring not common to trade
The third objection raised was that the ring is common to the trade as it was in manufacture by several persons in the region, including the opponent. But the Tribunal was satisfied that “the manufacturing system of the rings are same having same quality and style in the region and to be used after performing a pooja in the temple and known in the name of Payyanur Pavithra Ring only and does not lose is originality and can’t be considered as common to trade”, thereby closing the doors on the opposition, and pushing the application for registration.
Having said all of this, I must also point you to this article from the Hindu in 2005 that I came across earlier, based on a study by the Centre for Heritage Studies in Kochi, which argues that “Ethnic ornaments, which were once restricted to certain social sections and religious groups, are now transcending the barriers of religion and caste.” Specifically,
“Pavithra Mothiram was traditionally worn by men of the Brahmin community in connection with some rituals that they performed….Gone are the days when the Brahmin community alone wore this ring, which was also the specialty of jewellers from Payyannur. The ring is now widely used by men of all caste and religion and available at almost all jewellers across the State.”
[Image: Payyanur and Kerala; from wikipedia]
In any event, I don’t have much to say on this order, for the reason that I couldn’t understand it. I don’t know if it is the fault of the persons delivering the order, or the ones transcribing it, or even the copy editors of the PTC that eventually published it. But given the rarity of GI orders (which is logical, since there are hardly any GI applications in India at present), it would have been interesting to read a clear, crisp, and well-phrased document, if only from an academic point of view. Or perhaps I expect too much.
Plenty of innovations in GI …. This is incredible India, where religious faith also is a commodity
See Delhi HC Division Bench Judgment delivered today (9.2.2010) in Brayer Corporation v Union of India (Shah and Muralidhar) agreeing with Bhatt. The order is available on Delhi HC website. Date and Judgewise.
Although I was not specifically deliberating upon the GI issue, but a series of reportings on GI at your blog has suddenly given me an insight about a mechanism (worth considering), whereby the “community/group/collective” character of the registrant(s) could be made truly representative of the class, so that a few vested/sectarian interests could not end up cornering the benefits thereof. Its just a preliminary thought and I am wondering whether the district collector should be made to submit a strictly factual/status report regarding whether the registrant is truly the representative of the community. The grant of GI may be subject to such kind of certification from some authority. Although I am opposed, in general, to any ‘babu’ interference, yet I am advocating for such a mechanism, as GI issue appears to me to be of such national importance that it warrants some intervention of this kind. The essence/rationale/basis/raison d’ etre of GI legislattion is the ‘community’ ownership factor, which is quite contra-distinct from the Patent legislation. However, I agree that one may propose a different/alternative mechanism (e.g. some kind of a specialist agency for this particular purpose), to which I would be open. But somehow, I feel the district collector to be one such appropriate authority for this purpose.
-Aditya Kant
Dear Sumathi Chandrashekaran,
We represented the Applicant, Payyanur Pavithra Ring Artisans Development society in the GI application.
We agree that the order suffers from a serious lack of editing and correction. However, we are quite convinced that the order is just and reasonable.
All the issues raised by the opposition were sufficiently dealt with after giving both sides a reasonable hearing.
Section 11 clearly spells out who can apply for a GI. The applicants are a registered society well within the requirements of Section 11 of the GI Act.
We found that the opponent had infact attempted to register a Trademark for the payyanur pavithra ring in 1994 and had actually got a conditional TM wherein he could not use the ring independently without the name of his company. However, he let the TM lapse by failing to renew it in time. A subsequent effort to seek a TM on the ring is pending.
Since the author has welcomed comments, we would like to state that the ring’s special religious significance is not altered by its being registered as a GI. In fact, the GI would prevent rampant commercial exploitation of the design by persons not residing within the region; and/or not acquainted with the unique characteristics of the handicraft and the special consecration ceremony associated with it. As it is, we are aware of makers and sellers of pavithra rings in Chennai, bangalore and other parts of India.
The GI for Payyanur pavithra rings cannot be compared to the GI for Tirupathi Laddu. There are important points of distinction. A couple being:
1. the TTD trust would not fall under the definition of society of manufacturers as provided for under Section 11 of the GI Act.
2. the laddu is an offerring to God, whereas the ring is a mere object that is auspicious and brings grace to the wearer. Section 9(d) of the GI Act prohibits registration of objects which would hurt the sentiments of the people.
With regard to the third issue: it is true that the ring is not common to trade. It has special characteristics that can identify it such as in the intricate workmanship and the design. We do agree with the Registrar’s conclusion that the ring has not lost its originality and is therefore still linked to its geographical origins.
Before our clients could enjoy the statutory rights granted by the GI, they found themselves respondents in a Writ Petition before the Madras High Court filed by the owner of the lapsed TM, claiming sole right to manufacture the Pavithra ring on grounds of lineage.
regards,
swapna
Thanks for your comments, all.
#Aditya – The idea of DC verifying the authenticity of a registrant is interesting, and appears logical. But I suspect there may crop up issues when there is contention between communities/associations/ etc., belonging to different districts, and worse still, different states. I am not at all familiar with the administrative system, but it is likely that regional loyalties may come into play? You suggest also a specialist agency, which is equally interesting. However, I wonder then what the role of the GI registry would be, if not to establish the authenticity of an applicant at the time of evaluating an application? I’m not entirely convinced of introducing a separate agency, at least not at such an early evolutionary stage of GIs. Perhaps we need to ensure that the Registry itself is strengthened, and equipped with the capacity to assess such applications without much ado.
#Swapna: Thanks for your insight into the prosecution process. The TM matter that’s happening on the side makes the story of this opposition that much more interesting. Do keep us posted on developments on that front. Thank you also for pointing out what you believe is the difference between the Tirupati laddu and the Payyanur pavithra mothiram GIs. My own attempt was merely to suggest a non-religious framework to compare two otherwise religious products. With regard to your comments on the defence, thank you for the same. One of my key complaints with the order was that while it clearly stated the reasons for letting the application proceed for registration, it failed to clearly establish the opponents’ arguments/contentions, thereby making it fairly one-sided. It would have been more interesting for outsiders-looking-in to know what the debate actually was about.
well, i had not suggested either the DC, or the specialist agency as the only two alternative mechanisms. i am open to any kind of mechanism that suits fulfils the requirement, i.e. establishment of the truly representative community. all smaller aspects can be easily dealt with within that mechanism, e.g. take the case of 2 districts/states. in this hypothetical, let the district/state of the object of GI application be deemed as the district to start with n all other competing districts/states wud ve probably filed their case in opposition/objection. then the GI office wud ve adjudicated on them. u missed the real import of my expression “factual/status report”. DC was not supposed to be adjudicating. he is supposed to ve filed merely a status report regarding the representativeness n the GI office wud ve then adjudicated upon it.
coming from such a family, i am pretty much familiar with the indian administrative mechanism n hence i feel that DC mechnism offers a gud mechanism. (i hope i need not remind my another statement that, in general, i am opposed to the involvement of babus, to dispel your doubts abt me being biased while advocating the DC mechanism.) i ve offered that mechanism as i consider the DC office to be a very disinterested/neutral, n hence most suited, party in this regard.
lastly, it was an idea which just flashed into my mind n i shared it with u immediately. i am reiterating that i am perfectly open to any better mechanism. coz the real point is not the mechanism per se, but the safeguard of national interest in GI matters. GIs shud not b allowed to be cornered by crass commercial interests (in this regard, it is slightly different from patents where emphasis is on the other side of the inetrests continuum).
my 2 comments to this post shud not b taken as i am endorsing either sumathi or swapna’s views in toto, as i aint familiar with the real facts. my DC mechanism comment was actually a general comment in response to quite a few controversial GI reportings at this blog in recent times. so, please dont take it personally. i ve written to shamnad also n v agree on it n i wud like to see that the govt policy-makers take note of this suggestion. may b, when shamnad n me meets in near future, v can firm up some concrete view on this n lobby this position properly before the policy-makers.
-aditya kant
Dear Sumathi,
Corrigendum: The opponent in our GI application and the Petitioner in the current Writ Petition to seek a TM are different people but both manufacture the Ring in Payyanur and claim descent from the same ancestors.
It is a sad and lamented fact in almost all gatherings of lawyers that quasi-judicial officers, tribunals and courts are not delivering well-phrased, clear, concise and grammatically correct orders. I am a great admirer of US decisions in IP for their brevity, clarity and precision – even though I have some serious differences with the underlying jurisprudence and social consequences of some of the judgements. I think members of our admistrative tribunals and judges in India would definitely benefit from reading and analysing such judgements. I have to agree with you that it would have made much better reading, if the order had been written better.
I will definitely keep the readers updated. There is a hearing in the Writ Petition today on the application for interim stay of the order.
Regards,
Swapna Sundar
Patent Agent
P.V.S.Giridhar & Sai Associates
Advocates
Chennai
http://www.lawgonindia.com
#Aditya – Thanks for your clarification on the DC argument. At no point did I intend to convey that your suggestions were final or conclusive. My previous response was directed at possible problems such a mechanism might display in execution. At any rate, I continue to believe that introducing new entities (even if merely for purposes of providing a factual report) into the GI application process would be cumbersome. Instead, it remains imperative to strengthen the existing system so that a resort to external resources is minimal.
Having said that, I will certainly be interested to see what proposals yourself and Shamnad bring forward on this front. My own analysis of possible policy mechanisms to address problems in the IP registration system appear to be headed in a different direction.
#Swapna – Thank you also for clarifying the two different entities involved in the TM and GI matters. The defence of ancestry is surely something that comes up more often than not in the GI business!, and it will be interesting to learn of how this matter is resolved.
And haha – I’ve acquired notoriety in several circles for exhibiting pedantry especially when it involves matters of language. I shan’t harp on the order much, lest my reputation follow me here too…
u r perfectly entitled to your view. but in my view, the GI office is not competent (jurisdictionally, infrastructurally, or even otherwise) to undertake such an enquiry. the seat of GI office is far removed from the actual location of the object of the GI protection. on the other hand, the DC is the man on the ground. no one knows (or can ever know) the affairs (especially in matters of these kind) of the district more than a DC. moreover, the DC office is likely to be already in possession of such facts. GI office undertaking this factual inquiry wud b merely an unnecessary duplication of effort/time/energy/resources.
with this, i leave the issue to u (n readers), to make up your (their) own mind/view on it. gud luck!
-aditya kant