Recently, the aromatic, long grain rice known as ‘Basmati’, became another source of conflict between India and Pakistan. It isn’t the first time that a European GI registration for Basmati has been in the news, nor the first conflict relating to a GI between India and Pakistan. In the past, the GI registration of Pashmina had been a contentious issue. In 2008, India had decided to register Pashmina as a GI domestically and a Pakistani body had opposed this on the grounds that Pashmina was also produced in their territory. (discussed here) Pakistan was open for a joint GI tag, but India stated that it could only be possible if it was proven that Pakistan’s wool was of the same quality as India’s. At the end, a GI was granted for ‘Kashmir Pashmina’ solely for India. More than a decade ago, in 2008, India and Pakistan had considered filing a joint application for registration of Basmati as a GI in the EU. However, it could not be realised due to rising tensions between the two after the 26/11 Mumbai attacks. Coincidently, on the same day, Agricultural and Processed Food Products Export Development Authority (hereinafter ‘APEDA’) filed for Basmati’s domestic GI registration and in 2016, the GI was granted in its favour.
In July 2018, India had applied for protected geographical indication (PGI) status for Basmati before the European Commission. This application for registration was published in the Official Journal of the European Union on 11th September 2020 and can be opposed within 3 months of the publication, with a reasoned statement of opposition being required within two months of the notice. India’s GI registration in the EU will affect Pakistani exporters and Pakistan plans on ‘vehemently’ opposing this application. A formal objection will most likely be filed before the deadline. About 65 percent of the Basmati imports in EU are from India, while about 35 percent are from Pakistan. Indian government has stated that it has not claimed ‘exclusivity’ over Basmati. Pakistan would still be able to sell Basmati after EU’s grant of GI protection in favour of India, but the perceived value of their product may change. This post will analyse India’s application, practical problems that Pakistan might face in filing an opposition and the possible grounds on which it might oppose India’s application.
India’s Application to the European Commission
In the application, India has stated that Basmati is produced ‘in a particular geographical region of the Indian sub-continent. In India, this region is…’. This shows that India has not claimed that it is the only country that grows Basmati and not the only one eligible for a Basmati GI. But, the grant of this application in India’s favour may mean sole GI status for it. It is possible that EU may decide to grant GI protection for ‘Indian Basmati’, if they find Pakistan’s claim credible. Japan has granted protection to both Chile and Peru for Pisco, as ‘Chilean Pisco’ and ‘Pisco Peru’ respectively. Although far-fetched, there is also the possibility that EU may even grant PGI for India and protected designation of origin (PDO) for Pakistan, like they did with ‘Pisco’ for Peru and Chile. The application provides that the regions in which Basmati is grown are ‘all districts of the states of Punjab, Haryana, Delhi, Himachal Pradesh, Uttarakhand, as well as in specific districts of western Uttar Pradesh and Jammu & Kashmir’. Quality, reputation and specific characteristics have all been cited as the basis of the application. In the application, India seems to have complied satisfactorily with the requirements for product specification provided under the Article 7(1) of the Regulation (EU) No 1151/2012 of The European Parliament and of the Council (hereinafter ‘the Regulation’).
Practical Problems with Filing an Opposition
In March 2020, Pakistan enacted its GI statute, the GI (Registration and Protection) Act. And it seems they have not yet granted a domestic GI to basmati. Although a domestic GI registration is not specifically required for opposition purposes, it would strengthen their claim. Domestic GI registration is a prerequisite for applying for GI protection in the EU, but the authorities ‘of a third country, or a natural or legal person having a legitimate interest and established in a third country’ are allowed to lodge a notice of opposition with the Commission.
Prior to the grant of a GI, a challenge that Pakistan’s opposition might face is the requirement for proper demarcation of area. India faced a demarcation dispute by Madhya Pradesh (MP) for its inclusion under the Basmati GI tag (discussed here). Pakistan might face a similar issue with demarcation, as, due to Basmati’s commercial lucrativeness, it is being grown in areas outside of the terroir of origin.(pg 67) (aka unique environmental factors that contribute to the crop’s unique characteristics). Improper demarcation of these areas might weaken their case before EU. If areas that do not share the terroir of the Basmati growing regions are included in the GI, India could claim dilution of the Basmati GI.
Possible Grounds of Opposition by Pakistan
There are certain grounds which Pakistan may possibly raise in their opposition against India’s application. Article 51 of the Regulation specifies the procedure for opposition, while Article 10 provides the grounds for opposition. Article 10(1) lists four grounds for opposition.
First, Article 10(1)(a) requires that the opposing party show that the conditions regarding basic eligibility requirements (under Art 5), and product specification requirements (under Art 7(1) are not met – and prima facie India seems to have complied with all the specifications for PGI status. The Basmati growing regions listed in the application do not include Madhya Pradesh and this works in India’s favour. If MP’s claim had been accepted, it would have been another issue that Pakistan would have raised to weaken India’s claim in the EU and probably, successfully too. Pakistan could have raised this under Article 7(1)(c) that calls for specification of the delimited geographical area.
Second, Article 10(1)(b) seeks to determine if the proposed name conflicts with names of plant varieties and animal breeds, with homonyms and trademarks. This ground can clearly not be pleaded as Basmati does not conflict with the names of any of the above mentioned categories.
Third, Article 10(1)(c) requires that the opposing party demonstrate that the registration would jeopardise the existence of products that ‘have been legally on the market for at least five years preceding the date of the publication’. This claim can be substantiated by Pakistan as according to a 2004 European Council decision, regarding an agreement between Pakistan and EU, duty free import of certain varieties of Basmati from Pakistan is allowed into the EU. It can also refer to RiceTec case, wherein India had recognised that Basmati rice is grown in Pakistan as well. Pakistan can also claim that APEDA had acknowledged before the General Court of the European Union in 2019, in the Sir Basmati case, that ‘Basmati rice comes from India or Pakistan.’(Para 48). However, the General Court had found ‘the word “basmati” is commonly considered to designate a variety of rice from India in particular.’(Para 49)
Fourth, Article 10(1)(d) deals with provision of evidence on the basis of which it can be concluded that Basmati is a generic term. A strong argument in India’s favour could be APEDA’s relentless pursuance of attempted registrations worldwide and its role in prevention of dilution of the Basmati GI. In 2009, APEDA Act was amended to introduce Section 10A and ‘Basmati rice’, and this amendment empowers APEDA to protect Basmati’s GI status ‘in India or outside India’. It is said to have spent about 200-300 crores, in fighting over 1,000 legal actions for protection of Indian Basmati as well as for its promotion. Claiming this ground would not be fruitful and also disadvantageous to Pakistan, as it would then also not be able to register Basmati GI in EU at any point in the future. This action could even open doors for Basmati export by other Asian nations such as Nepal.
If Pakistan is successful in opposing India’s application, then India would ensure that Pakistan’s individual claim for Basmati GI is unsuccessful, if made at any point in the future. The only practical, mutually-beneficial option, in case Pakistan succeeds in opposing, would be to file for a joint application. There are many transnational GIs registered in the EU. The chances of India and Pakistan filing a joint application seem bleak, if the past is anything to go by. However, taking into consideration the significance of Basmati for the two, Pakistan would most likely not let Basmati GI go without putting up a fight.
In case Pakistan’s opposition fails, India has a lot to gain as the sole GI holder for Basmati in the EU. There are multiple benefits that come along with a PGI status and Article 13 of the Regulation lays down the ‘protection’ that is available to a registered GI holder in the EU. It provides that a PGI ‘shall not become generic’ and even protects the use of ‘Basmati’ with words such as ‘“style”, “type”, “method”, “as produced in”, “imitation” or similar.’ This means that if India gets GI protection, then Pakistan won’t be allowed to sell its Basmati even with the labelling ‘Pakistan Basmati’ or ‘Basmati produced in Pakistan’ in the EU. However, there is a possibility that Pakistan can seek ‘Pakistan Basmati’ GI in EU. Canada has granted GI protection to ‘Chilean Pisco’ and ‘Pisco, Peru’ under free trade agreements and agreed the situation is not similar to the one at hand, but a parallel could be drawn. The position in EU with regard to the registrations of a GI along with the name of a country is not known. The readers are welcome to comment if they know anything in this regard. PGI status would allow Indian exporters to demand higher prices for Basmati rice. If India is successful, a situation like Sir Basmati would also be avoided in the future, as trademarks with the word ‘Basmati’ or referring to it, would not be allowed to be registered under Article 14(1). In conclusion, a PGI status would benefit India, but it is to be seen how Pakistan’s opposition pans out.