Has the Rasgulla GI Debate Missed the Wood for the Trees?

This post, co-authored by Latha R Nair and myself, covers the recent debate about the registration of a GI on ‘Rasgulla’. Latha R Nair is a partner at the IP boutique K&S Partners where her practice focuses on trademarks, geographical indications and copyrights. She regularly speaks at various national and international fora on these subjects and has also authored several articles which are available on her firm’s website www.knspartners.com. She can be contacted at [email protected]. We would also like to acknowledge the special inputs of Anooja Padhee, an associate at K&S Partners on the details of Pahala Rasgullas. [Long Post]

Has the Rasgulla GI Debate Missed the Wood for the Trees?

Latha R Nair & Kartik Chawla

What comes to your mind when you hear ‘Rasgulla’? Odisha? Or your favourite sweetmeat shop? And again, what comes to your mind when you hear ‘Odisha’ or ‘Orissa’ at it was? Konark temple? Pattachitra? Sambalpuri Ikat? Or Rasgulla?  Your honest answers to these questions will point to whether or not Rasgulla is a geographical indication.

The recent debates appearing in the media over the claim of origin and ownership of Rasgulla by the states of Bengal and Odisha, may be a case of wasted passions and bad counsel. While some media reports are to the effect that the State of Odisha has filed an application in its name for registering Rasgulla as a geographical Indication (GI) others say that an application will be filed soon to register Rasgulla as a GI. Some other reports say that the State will be filing to register ‘Pahala Rasgulla’ as a GI. Spicy IP’s inquiries at the GI Registry in Chennai reveal that no application has been filed for Rasgulla or Pahala Rasgulla as of the evening of 6th August.

Pahala is a small village on NH 5 between Puri and Bhubaneswar and is a favourite stopover for its brown Rasgulla which is apparently less sweet, not spongy and more delicious than its commonly available white counterpart. The Odisha government’s Micro, Small and Medium Enterprises ministry has reportedly asked the Cuttack district industries to initiate the process for obtaining a GI for the ‘Pahala Rasgulla’. The government then plans on formalising the production of the dish in this cluster to bring it up to scratch for the GI registration, including setting up a special purpose vehicle for channeling funds for the process and conducting studies into how the tag will benefit or harm the cluster.

This post details and analyses some of the media reports on the eligibility of Rasgulla or Pahala Rasgulla as an entrant in the Register of GIs and attempts to clear some of the misconceptions.

What is Rasgulla?

‘Rasgulla’ is one of the quintessential Indian sweetmeats, white in colour, spongy and soaked in sugar syrup, prepared and sold not only across the country but also in Indian restaurants around the world. Whether prepared and served in upmarket Indian restaurants in New York, London or in small sweet shops in humble Chandni Chowk or Chitranjan Park, no consumer is naïve enough to question the shopkeeper whether the Rasgulla is from Bengal or Odisha.  But the origin of this delicious dish has suddenly come into limelight and is being passionately contested between the Odiyas and the Bengalis, both of who claim that it was created by members of their communities. The Odiyas reportedly claim that the dish originated from the Jagannath Temple in Puri, where it is a part of the religious rituals, and has been a part of the same since the 12^th century. Whereas the Bengalis reportedly claim that it was invented by noted confectioner Nobin Chandra Das in 1868, and popularised by the sweetmeat chain KC Das launched by his son. While the sweet tooth may care a dime for the origins of Rasgulla, the debate is getting pointlessly passionate in the media.

Can Rasgulla Qualify as a GI under the Indian law?

A Geographical Indication, or ‘GI’, is a name or sign used on certain products indicating certain qualities, characteristics or reputation which are essentially attributable to its geographical origin. As per the Geographical Indications of Goods (Registration and Protection) Act (‘Act’), 1999, a GI is defined as “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 characteristic of such goods is essentially attributable to its geographical origin”.  The Act also requires that the good in question, if it is a manufactured good, should be produced, processed or prepared in the designated area.

An application under this law can be made by any association of persons, producers, organization or authority established by or under the law representing the interests of the producers.

Tested against that definition, the first question is whether Rasgulla is a deserving entrant in the Register of Geographical Indications. In other words, is Rasgulla a manufactured product originating only from Odisha (or Bengal) where its given quality, reputation or other characteristics are essentially attributable to Odisha (or Bengal)?  Is there currently a public perception among the trade and consumers that Rasgulla comes only from Odisha (or Bengal)?

More importantly, though the state of Odisha seems to have well-meaning and detailed plans for the enforcement of the right to use the name Rasgulla, it is to be examined whether it has actually considered all the issues involved here. While Rasgulla’s origins may have been Odisha or Bengal, currently, Rasgulla is a common sweet dish that is made and consumed across the country and in many parts of the world by Indians. It is too farfetched to say that consumers or even traders of Rasgulla associate it with Odisha (or Bengal). At best, it can be said that Rasgulla is an Indian sweetmeat, just like Gulab Jamun or Halwa or Sandesh. Any application to register the same would, therefore, be prohibited under Section 9(f) of the Act, which prohibits registration of generic names or indications of goods that are not protected or ceased to be protected, or which have fallen into disuse. A simple test of that is a market check of the sweetmeat shops across the country to see if they are all stocking and selling Rasgullas from Odisha (or Bengal). After all, the most famous Bengali sweetshop in the country, K.C. Das has branches in several big cities in India and they were never heard to claim that their Rasgullas are made in Bengal.

Has the Government of Odisha spared a thought as to what would happen to the innumerable sweetmeat sellers all around India who sell Rasgullas and have been calling it so for decades? Are they planning to stop that section of the trade from legitimately describing their wares as ‘Rasgulla’ just because they have suddenly and unilaterally decided that Rasgulla is an item that is fit to enter the Register of Geographical Indications?

Even assuming that the Government of Odisha is right in filing this application, with the kind of unopposed, long and legitimate use by the non-Odisha sweet sellers to correctly describe their wares as Rasgulla, how are they going to ensure that Rasgulla from Odisha will only be called Rasgulla? Unless there is a public perception of Rasgullas to be originating only from Odisha, can the newly identified group of beneficiaries claim any premium in their wares?  And, just who is this application going to benefit? Aren’t the multitudes of sweet sellers across the country who sell Rasgulla, a testimony to the fact that the common man considers Rasgulla to be merely a sweetmeat and has no association that it comes from Bengal/ Odisha as the case may be?  Certainly, you are not going to a Bikanerwala or Haldirams or your favourite sweetshop and say, ‘please give me Rasgullas from Bengal/ Orissa’.

Can Pahala Rasgullas Qualify as a GI?

If it is about the protection for Pahala Rasgulla then the debate may be a little different and certainly more comforting. Pahala Rasgullas according to those who have had it are brown in colour, soft (not spongy) and not very sweet. Also, it seems that they don’t have a long shelf life (apparently not more than a day) due to the thin sugar syrup used (as opposed to the thick one in the case of the white Rasgulla) and will hence have to be preferably consumed at the shops in Pahala itself. If Rasgullas from Pahala indeed have this reputation of being different from the usual white, spongy and very sweet Rasgullas and are known to be available only in Pahala, then they seem to fit the bill for a GI application. Of course, the applicant will have to comply with all the requirements under the Act including demonstrating that it represents the interests of the producers of this food stuff and file supporting documents as to historical origin of the dish, how it is a unique Rasgulla etc.

So let’s hope that the media got it all wrong again and that it is Pahala’s Rasgullas that the Odisha Government is planning to protect as ‘Pahala Rasgullas’. If this is not the case, and the target is ‘Rasgulla’ itself, we could soon see Dosa, Idli, Appam, Dhokla, Poha etc., making a beeline before the GI Registry to get into the Register!