Even as the Indian Government has taken a number of substantive steps over the last two decades to put in place a robust legal framework to enable communities to protect their intellectual property rights through trademark and geographical indication protection, these measures haven’t translated into meaningful results on the ground. More specifically, even though Indian IP law envisages the protection of this sui generis form of IP by communities, a fundamental lack of awareness, coupled with excessive governmental interference, have resulted in the transformative potential of these laws remaining largely untapped.
This implementation gap is best evidenced by Prashant’s survey which showed that 57% of the sample GI applications that he reviewed were filed by either the central or the state government. Citing rather curious instances of the Chennai-based Central Leather Research Institute seeking protection for Kolhapuri chappals and central government officials seeking country-wide GI protection for intellectual property with which such officials had no connection, Prashant cogently argued for the need to overhaul the status quo in order to provide the concerned communities a stronger voice in the IP protection process.
This being the case, a recent news report of a farmers’ collective obtaining trademark protection for a form of organic spices and food products in Kerala, called Wayanadan, is a welcome development. The collective, Biowin Agro Research, is a part of the Wayanad Social Service Society – a consortium of more than 12,000 organic farmers in Kerala.
The trademark application, which can be found here, makes for an interesting read. Curiously, Biowin did not seek to register Wayanadan as a collective mark, by filing form TM-3, choosing instead to file form TM-51 which is ordinarily submitted for the registration of trademarks owned wholly by a single entity. Section 2(1)(g) of the Trademarks Act, 1999, defines a collective mark in the following way: “”collective mark” means a trade mark distinguishing the goods or services of members of an association of persons [not being a partnership within the meaning of the Indian Partnership Act, 1932 (9 of 1932)] which is the proprietor of the mark from those of others.” Since Biowin wanted to register the Wayanadan brand for the benefit of the farmers who are its members, it is difficult to fathom why it did not file an application for the registration of a collective mark.
Be that as it may, the news report indicates that Biowin hopes to leverage the trademark registration to ensure that farmers get a fair and reasonable price for the organic spices that they produce. This development, if true, could mark a sea change in the way in which communities create and exploit intellectual property for at least two significant reasons.
First, at a time when communities are being deprived of the fruits of their ingenuity by the adoption of clandestine strategies by private players, the protection obtained by Biowin for Wayanadan is a testament to the fact that, if provided the requisite resources, communities can effectively safeguard their intellectual property without external support.
Second, in order for a community to be able to exploit the full potential of its innovations, its legal rights that flow from such innovations must rest on a secure legal footing. To that end, this development provides a concrete and tangible example of how collectives like Biowin can seek legal protection for their innovations – an example which can be widely emulated.
That being said, it is not entirely clear if the TM registry has actually registered the Wayanadan trademark yet. I say this because the TM registry website indicates that there is a pending objection against the application.
A closer scrutiny of the examination report reveals that Biowin has been asked to show, by 30.09.2016, how its mark is not similar to the marks alluded to in the report, giving rise to a likelihood of confusion. That being said, the objection advanced by the registry, under Sec. 11(1), seems like a fairly routine objection, so it appears unlikely that Biowin will face any significant obstacles in getting the mark registered in an expeditious fashion.
In sum, while the precise impact of this development remains to be seen, it would not be an exaggeration to state that it is likely to play a significant role in bringing to an end the practice of government agencies arrogating to themselves the task of seeking protection for community-based IP and will go a long way in ensuring that the rights flowing from such innovations are restored to their rightful owners – the communities responsible for such innovations.
P.S. Thanks to Anusha Reddy for helping me locate the TM application on the TM registry’s website.