SpicyIP Tidbit: Suo moto powers of the IPAB & the ‘Tirupati Laddu’ GI


One our regular commentators Mr. Praveen Raj, a trademark/GI activist, had earlier petitioned the Intellectual Property Appellate Board to cancel the Tirupati Laddu GI. The full text of the petition which can be accessed over here, on his blog, lists out the grounds on which the GI may be cancelled. More interestingly Mr. Raj requested the IPAB to invoke its suo-moto powers under Section 27 of the GI Act. The IPAB however replied to Mr. Raj’s petition informing him that the IPAB has no power to initiate suo-moto action in this regard.
A reading of Section 27(4) of the Geographical Indications of Goods Act, 1999 suggests that the IPAB does have suo-moto power to cancel the registration of a geographical registration. The IPAB was therefore wrong in denying it has such power. The IPAB clearly has the power to cancel a registered GI on its own own motion. The question now is simply whether it is required to invoke this power on a petition by a member of the public.
‘Suo moto’ by its very definition means by ‘its own motion’ and it is these words which are used by Section 27(4). This means that the IPAB may invoke its powers on its own motion once it is satisfied that there is a need to revoke the GI. There is however no obligation on the IPAB, under Section 27(4) to invoke its powers on the basis of a petition filed by a third party. The ‘suo moto’ power of the IPAB is completely discretionary and the IPAB would be completely justified in not invoking its powers under Section 27(4) of the Act.
The question now comes to whether a ‘public spirited’ person such as Mr. Praveen Raj could be termed as a ‘person aggreived’ under Section 27(1) thereby giving him the right to file a formal petition, in his name, challenging the ‘Tirupati Laddu’ GI. In my understanding Mr. Praveen Raj can easily qualify as an aggreived person therefore giving him the right to challenge the registration. Unlike the Patents Act which defines ‘interested person’ in the context of revocation petitions, the GI Act and the Trade Marks Act, 1999 do not define ‘aggreived person’. Therefore as long as Mr. Raj can locate the cause of his ‘grief’ within the Act he could easily qualify as an ‘aggrieved person’ under Section 27(1). As per his petition it appears that his religious sentiments have been injured by this registration. Further as pointed out in his petition, as per Section 9(d), a GI may not be registered if it ‘comprises or contains any matter likely to hurt the religious susceptibilies of any class or section of the citizens of India’. Therefore if Mr. Raj can sufficiently establish that his religious sentiments have ben injured by this registration there is no reason for him not to qualify as an aggreived person under Section 27(1). In any case it would be interesting to see the fate of such a petition and hopefully Mr. Raj will act as the torchbearer in helping the IPAB defining the contours of an ‘aggreived person’.
Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

11 comments.

  1. AvatarPrashant Reddy

    Hi Mr. Raj,

    I think you should just file a cancellation petition under Section 27(1) of the GI Act. I’m sure that the IPAB will accept it. It will not take too much work since you have all the material ready with you.

    The IPAB already has enough work and it is not going to create more work for itself. So you should really not expect them to take it up suo moto.

    Best of luck – hope you are going to file the cancellation petition soon!

    Warm Regards,
    Prashant

    Reply
  2. AvatarSwaroopa Chavan

    I agree that GI registry has Suo motto power u/s 27 to cancel/vary/rectify the registration.
    I support the petitioner as well.
    Tirupati ladu is a “prasad” and should not be considered as goods though our law has explicitly extended the protection to not only agri or natural products but manufactured goods, products having attributable qualities with respect to specific geographical location.

    But I fail to under the logic behind the said provision i.e. suo motto power. Not only in GI but for any IP rights , Authority grants it after conducting examination and after they are satisfied about the said eligibility. I am not much aware about other rights except that of Patents.
    But unless, someone who is “aggrieved” or “interested” makes an application for rectification/revocation, how the said right can be cancelled by an authority “of its own motion”?

    regards,
    Swaroopa

    Reply
  3. AvatarR S PRAVEEN RAJ

    @ Prashant – Let me wait and see the course of action by IPAB. cancellation petition can be filed at any time (even after one or two years). Let the academics deliberate on this in the mean time. GI in India is still in its infancy.

    @Swaroopa – Unlike other IPRs, GI has a public interest element. That may be the reason why the GI Act provides the ‘suo motu’ provision.

    Reply
  4. AvatarPrashant Reddy

    Dear Mr. Raj,

    I think the academic opinion is in support of your stand. You must strike while the iron is still hot and put the government on notice. I would once again urge you to follow the procedure established by law and file a rectification procedure under the GI Act.

    Best of Luck!

    Cheers,
    Prashant

    Reply
  5. AvatarSwaroopa Chavan

    @ Mr. Raj: I agree with you. But somehow I think even patents do have public interest element, especially patents of pharma and life.

    However, I feel that Registry should make optimum use of this provision by making a review of registered GIs and study their implications on society much like “post-marketing surveillance” of drugs.
    Best of luck!

    Reply
  6. Avatarlegalbumble

    Prashant, look at it this way. Sup motu power is exercised when the Board acts on its own motion. If it acts on a peition by any party, aggrieved or not, then the powers so exercised no longer remain a power exrcised ‘suo motu’. They are on a petition that has its own prayers. And in that petition they are guided by the averments made in the petition. Whether then the Board has the power to entertain PILs? I think not. Hence from this angle i suppose the cancellation and other roputes are beter options once the Board has not taken cognizance on its own.

    Reply
  7. AvatarR S PRAVEEN RAJ

    @legalbumble – The purpose of letter-petition is just for the information sake. It is upto the wisdom of IPAB to take cognisance or it or not. Now there is a file in IPAB Registry which contains my petition and its reply issued by IPAB (DY. NO. 3111/2010/6272 dated 20th August 2010).

    While dismissing the writ petition for cancelling Tirupati laddu GI as non-maintainable, Madras High court directed that the petitioner Mohan Raj may approach IPAB.

    Now there is a petition resting in IPAB’s registry, though the same is not filed by Mr. Mohan Raj. Any Indian citizen can get a copy of it by filing an RTI Request. I have also submitted to IPAB, the following research papers/legal articles by erudite IP Academicians/Professors.

    1) Grant of Geographical Indication Designation to Tirupati Laddu: Commercialization of faith? – Research paper authored by Ms. Meghna Banerjee & Ms. Susanah Naushad, published in Vol.3 2010 No. 1 of NUJS Law Review, a quarterly law review published by W.B. National University of Juridical Sciences, Kolkata.

    2) GI for Tirupati Laddu: Whose interests protected? – Legal article by Prof. Madabhushi Sridhar, Professor and IPR chair at National Academy of Legal Studies and Research (NALSAR) University of Law at Hyderabad, published in http://indianipinfo.blogspot.com/

    3) Geographical Indication status for the ‘Tirupati laddu’ – Legal article by Ms. Ritika Patni from W.B. National University of Juridical Sciences, Kolkata, published in Vol. 3 Issue 3 of India Law Journal

    4) Bittersweet Status – A Legal article by Mr. V. Venkatesan published in Volume 26 – Issue 21 (Oct 10 – 23, 2009) of FRONTLINE, national magazine from the publishers of THE HINDU

    IPAB will act only if it is convinced about the public interest. Let’s wait and see.

    Reply

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