GEOGRAPHICAL INDICATION OF ‘DARJEELING TEA’-CHALLENGED

Darjeeling Tea, one of the worlds famous and a premium Geographical Indications from India  was registered as first Indian GI with office of The Registrar of GI, Chennai. This was pursuant to the enforcement of GI Act 1999.

 

It has been registered on the application filed by a statutory Body known as ‘Tea Board’ under ‘The Tea Act’, having its head office at Kolkotta. The ‘Tea Board’ is constituted with an objective to promote and protect export of ‘Darjeeling Tea’.

 

As earlier stated, the manner procedure and practice adopted by the office of The Registrar GI in India is highly illegal and arbitrary and is an example of sheer non- application of mind to the issues involved.

 

Section 11 of the GI Act postulates for an application to be filed by an authority established under law for protecting interest of growers/ producers.

 

The legal status The ‘Tea Board’ who filed an application for Darjeeling Tea, was not at all examined by the Registrar office at Chennai. Whether the ‘Tea Board’ is eligible under Section 11 of GI Act was never scrutinized. Not a single authorised user has been registered till yet. In consequence all the existing bonafide growers are made unauthorized users, as the GI Laws gives protection to only registered authorised users. 

 

Recently one Shri Rajeev Saraf from New Delhi, a highly Public spirited person, has taken up this cause of registration of GI’s in illegal manner by the office of the Registrar, Chennai and has moved a petition for cancellation of registered GI of ‘Darjeeling Tea’.

 

The objective of GI Laws in India is to protect the interests of its producers. All the growers of Darjeeling Tea are not the members of ‘Tea Board’ and nor the same has been constituted with an objective to protect the interests of Tea growers. It also lacks  mandate to apply and obtain protection under various Intellectual Property Rights/Laws for the growers.

 

There is no second thought that Darjeeling Tea is our nations pride and must be protected by eliminating its spurious market. But it would be highly undesirable to protect the same in manner as done now. Such kind of registration is bound to collapse sooner or later.

 

What we need is to do introspection as to whether the action undertaken by various Government agencies and other statutory authorities to themselves protect IP Rights is a correct act or not. Till yet such efforts have not yielded any positive results expect seminars after seminars and only projecting the higher number of registered GI’s in India. Further perpetuation of illegal acts shall render the wonderful concept of GI a nullity. What we need to reevaluate all our decisions and rectify errors.

 

The correct approach to protect GI should be to actively involve grass root Principal Stakeholders in the acts of protection of GI, constitute their legally sustainable body with no commercial objective and thereafter proceed under law for protection.

GEOGRAPHICAL INDICATION OF ‘DARJEELING TEA’

Darjeeling Tea, one of the worlds famous and a premium Geographical Indications from India was registered as first Indian GI with office of The Registrar of GI, Chennai. This was pursuant to the enforcement of GI Act 1999.

It has been registered on the application filed by a statutory Body known as ‘Tea Board’ under ‘The Tea Act’, having its head office at Kolkotta. The ‘Tea Board’ is constituted with an objective to promote and protect export of ‘Darjeeling Tea’.

As earlier stated, the manner procedure and practice adopted by the office of The Registrar GI in India is highly illegal and arbitrary and is an example of sheer non- application of mind to the issues involved.

Section 11 of the GI Act postulates for an application to be filed by an authority established under law for protecting interest of growers/ producers.

The legal status The ‘Tea Board’ who filed an application for Darjeeling Tea, was not at all examined by the Registrar office at Chennai. Whether the ‘Tea Board’ is eligible under Section 11 of GI Act was never scrutinized. Not a single authorised user has been registered till yet. In consequence all the existing bonafide growers are made unauthorized users, as the GI Laws gives protection to only registered authorised users.

Recently one Shri Rajeev Saraf from New Delhi, a highly Public spirited person, has taken up this cause of registration of GI’s in illegal manner by the office of the Registrar, Chennai and has moved a petition for cancellation of registered GI of ‘Darjeeling Tea’.

The objective of GI Laws in India is to protect the interests of its producers. All the growers of Darjeeling Tea are not the members of ‘Tea Board’ and nor the same has been constituted with an objective to protect the interests of Tea growers. It also lacks mandate to apply and obtain protection under various Intellectual Property Rights/Laws for the growers.

There is no second thought that Darjeeling Tea is our nations pride and must be protected by eliminating its spurious market. But it would be highly undesirable to protect the same in manner as done now. Such kind of registration is bound to collapse sooner or later.

What we need is to do introspection as to whether the action undertaken by various Government agencies and other statutory authorities to themselves protect IP Rights is a correct act or not. Till yet such efforts have not yielded any positive results expect seminars after seminars and only projecting the higher number of registered GI’s in India. Further perpetuation of illegal acts shall render the wonderful concept of GI a nullity. What we need to reevaluate all our decisions and rectify errors.

The correct approach to protect GI should be to actively involve grass root Principal Stakeholders in the acts of protection of GI, constitute their legally sustainable body with no commercial objective and thereafter proceed under law for protection.

STATE MONOPOLY OF GI- LEGALITY- ITS ROLE AND IMPACT

Section 11 of the Geographical Indications Act 1999 defines the applicant eligible for applying for registration of any GI. It states as under;-

“Any association of persons or producers or any organization or authority established by or under any law for the time being in force representing the interest of the producers of the concerned goods, who are desirous of registering a geographical indication in relation to such goods shall apply in writing to the Registrar in such form and in such manner and accompanied by such fees as may be prescribed for the registration of the geographical indication----“.

Thus in law the applicant for GI registration should be an association of persons or producers or any organizations or authority representing the interest of the producers of the concerned goods.

The term ‘Producer’ defined in Section 2 (k) of the GI Act 1999 in nutshell means the actual producers of the goods and includes the person who processes and packages the same.

Thus the applicant has to be an authority in law competent to do so pursuant to the objectives of this GI Act 1999 and not earlier.

90% GI’s in India has been got registered either by the Central/ State Government agencies and/or it subsidiaries.

Internationally GI’s are owned by the associations of principle stakeholders while the concerned Government supporting their cause.

The careful perusal of Section 11 of the GI Act doesn’t enable the Government agencies to apply for any GI registration. In the Government organisation the producer has not role to play and nor they are the constituent of the same.

The proper recourse to my mind is to constitute a Non Commercial benefit based apex legal body of the producers of the product in question. The same should be empowered to protect the GI rights including its sustained protection and enforcement. In that manner the UNIDO while working at ‘Chanderi Sarees’ Cluster (MP) and in ‘Kota Doria’ cluster (Rajasthan) adopted a right approach by constituting NGO’s of the weavers and other related producers empowering them to protect their GI

The Registrar of GI in India while scrutinizing any of the GI applications filed by their counter part Government agencies has never raised any objection to such application thereby questioning its eligibility within the legal parameters of Section 11 of GI Act. On the other hand the other applicants are repeatedly questioned about their eligibility to apply for registration.

Apparently not only the Registrar of GI office at Chennai has adopted highly unfair, partial and illegal approach to scrutinize the applications filed by the Government agencies on the one hand and the applications filed by the non government agencies on the other hand.

Such kind of unfair and illegal practices not only render the GI a nullity but shall also convert the product into generic category over a long period of time. The impact of such arbitrary practices adopted and practiced can be seen in India as none of the GI registered by the Government agencies has been able to deliver the assured results. The principle stakeholders are not even aware by their rights under GI laws. By conduct of the State owing GI’s, the legal interest of principal stakeholders are made non existent. Not even a single State owned GI’s has been able to stop the spurious activities of the related product.

It is high time that the State/Government to realize its role of promoter and to empower the principal stakeholders/ beneficiaries and not to take over their valuable socio economic legal rights. The development agencies all across India are wasting valuable public money having no sanctity for the legal provisions. Crores of Rupees are wasted in such exercise by the Government agencies merely to show and build records of their performance and generate artificial numbers.

The Development Consultants, Legal Experts and other linked Intellectuals with the GI’s need to join hands to critically evaluate the role played State while owning GI’s in such an illegal and arbitrary manner.

In case of failure, in case of failure to do so, it will a matter of time that this valuable GI Laws meant to protect the interest of true owner of Traditional Knowledge and to provide them with legal status shall become a story.

HIJACKING THE GI OF TRADITIONAL BASMATI RICE

BACKGROUND:

The premium rice variety popularly known as ‘Basmati’ from Northern India is most crucial example of the growing significance of Traditional Knowledge. Its sustainability, protection of its IP Rights and survival of Lakhs of farmers, is a big challenge.

Whenever we talk about Basmati, no one refrains from referring to the various patents granted and subsequent cancellation to phonetically similar varieties of Basmati Rice by USPTO and surrounding international controversies. This issue is now well settled and one needs to proceed further.

How to protect the indigenously lined Traditional Basmati growing community in India is a burning issue for any of the IP Rights activist.

What is Basmati is still undefined, though there are unending numerous definitions/ claims.

Exports across country are lobbying to encash the Brand value of Basmati by repeatedly enlarging its definition by inclusion of various highbred fast growing rice varieties into its arena. It may be considered crucial from their commercial benefits but its impact upon the genuine Basmati growing areas and farmers is not at in discussion. The addition of highbred fast growing rice varieties as ‘Basmati’ in comparison of Traditional Basmati varieties is due to its fast and rich harvesting. The production of genuine traditional Basmati varieties takes more than double the time than taken by its highbred varieties. How far it has the linked benefit sharing benefits to the genuine farmers of Basmati growing, whose interests are compromised, is an unresolved issue which still remains unaddressed.

Various Indian Public Service Undertakings, agricultural research bodies/ organisations are making efforts not to protect Basmati but to enhance its own reputation by pretending to be working for protection of Traditional Basmati rice.

STATUS OF ‘THE HERITAGE’:

This is the only exclusive NGO (a Society) registered under Society Registration Act constituting of all Traditional Basmati Growing farmers as its members. This Haryana based society having it’s headquarter at ‘Tarorari’, which is an undisputed place of Traditional Basmati variety having historical linkage. This is an absolutely non-profit making organisation having no commercial objective. This is constituted in 2004 with the sole objective of protecting the IP values of Traditional Basmati under Indian Geographical Indications Act 1999.

BASMATI GI APPLICATION BY THE HERITAGE:

In August 2004, an application for GI registration was filed by the aforesaid NGO The Heritage. The application was filed along with entire supporting records consisting of various Historical evidence, growing areas and its maps, list of growers, producers and with related Indian Government Rules and regulations, running into more than 200 pages.

The GI Registry prior to constitution of Consultative Committee as envisaged in GI Rules raised certain objection which were answered in detail and on merits. Thereafter the Consultative Committee in its first meeting at New Delhi on 26^th November 2006. Prior to the said Meeting the national newspaper ‘The Hindu’ published from Chennai circulated a news article that the application has been rejected. This highly objectionable news article was brought to the notice of the Consultative Committee in its hearing and it was agreed upon to keep the proceedings confidential and not to be leaked to anyone including the press.

The objections raised by the aforesaid Consultative Committee relating to the Structure of applicant and technical flows were removed. The amended application was filed on 01/03/2007 by the said ‘The Heritage’. In the amended application so filed the applicant has included all Traditional varieties of basmati its genetic structure and other requite scientific details.

The Registrar has not issued any ‘Examination Report’ till date.

Despite non issuance of any ‘Examination report’ as mandatory under GI Rules, The registrar of GI opted to conduct couple of meetings behind the applicant back were conducted at Chennai. The proceedings of which were not communicated to the applicant till yet. But the Registrar of GI did communicated to the applicant that hearing thereof shall take place, which has still not taken place.

Hence the GI application filed the ‘The Heritage’ is still pending. Though the office of registrar of GI, its officials, and the officials of Ministry of Commerce leaked the proceedings of Consultative Committee held on 26^th November 2006 to press and as widely reported by spiecyIP on blogs.

It is being deliberately and intentionally projected that the application stand rejected while the same is still pending.

BASMATI & APEDA:

APEDA (Agricultural and Processed Food Export Development Authority) constituted as a statutory body under the Indian Parliament Act in 1985 is primarily with the objective to protect, regulate and enhance the Exports of certain Indian agricultural products and processed food products.

Pursuant to the enactment of Geographical Indications laws in India, its controlling Ministry of Commerce (DIPP) vide its letter dated 31^st January 2003 addressed to APEDA appointed Mr. V. Ravi Kumar as Escorts Officer to extend appropriate activist and facilitate process for filing GI application by APEDA. Incidentally the said Mr. V. Ravi Kumar is the Registrar of Geographical Indications of India.

Though the laws doesn’t confer any power upon the Ministry of Commerce to issues such a directive of naming a particular GI applicant and appointing the quasi judicial authority for adjudicating the application of GI as its Escort Officer.

No application has been filed by APEDA for the last nine years for protection of GI of Basmati in India. Recently in a Workshop hosted by APEDA and UNCTAD at New Delhi on 25^th November 2008, it has been declared by APEDA that now they have the mandate to apply for Basmati GI application which shall be filed now and the same shall be shortly granted in their favour. This was declared so in the presence of Registrar of GI in India Mr. V. Ravi Kumar, who opted to be silent spectator of such monopolistic declaration of APEDA.

There is no iota of doubt that such a silence on the part of Registrar of GI clearly amounts to prior approval of all the proposed acts of APEDA under GI Act and grant of Basmati GI in their favour without any application thereof. The workshop beside other participants was largely attended by the high level representative of All India Rice Exporters Association. Not to mention herein that not a single representative of Basmati growers including farmers was either invited or present. Though they claims to be working for farmers rights.

HIJACKING OF BASMATI GI:

The trade of Basmati rice is at stake having an export of about 200 Crores per annum from India. The piracy of Basmati, its spuriousness and repeated complaints thereof by EU, UK and other countries is a well known history.

Basmati rice and Darjeeling Tea are to two prime products of India making Government of India to propose the enactment of GI laws in 1999.

The same Registrar of GI in India who objected to the application of ‘The Heritage’ to be one filed by Exporters and not by farmers is now propagating the cause of GI application by APEDA, which is a Export regulating authority having no farmers base or as its members. The unknown body constituted by APEDA namely BEDF (Basmati Export Development Foundation) is having number of exporters as its members. Not a single farmer is in its Governing Board or as its members.

While the Registrar of GI objected and directed the applicant ‘The Heritage’ to make farmers as its members but is supporting the cause of rich and prosperous Exporters and APEDA by being present there and opting to be silent to the monopolistic declaration of APEDA as its future GI owner of Basmati.

Keeping the GI application of ‘The Heritage’ pending for four years and in the meanwhile amending laws to enable APEDA to file GI applications and constituting BEDF with exports all around conclusively prove that there are constructive efforts to hijack the basmati GI and exploits its market credibility for the benefit of handsome exporters.

By shouting and raising slogans of protecting the interest of farmers and actually candidly working to compromise their interest in such an arbitrary manner inevitably concludes that there are serious threats to the India’s claim to GI of Basmati. If it is allowed to continue anymore, the day is not far when the production and producer of traditional variety of Basmati rice shall die forever.

There is thus a well planned and collusive efforts by Government Statutory Body APEDA, Rice Exporters, and as well as Registrar of GI to hijack the Basmati GI. It is time for all of us to unite and fight against the well planned and designed act of hijack the GI of Basmati. If it is not put to halt, the day is not far when the Traditional varieties of Basmati shall die forever and Exporters shall make millions in the garb of traditional varieties of Basmati rice.

Let us fight for farmers’ right and protect the hijacking of Basmati GI.

Geographical Indications: Registration- procedural lapses!!

GI Laws in India are meant to protect ‘Community owned Collective Rights’

 

Section 13 of the GI Act 1999 stipulates that the accepted application be advertised ‘in such manner as may be prescribed’. Rule 38 of the GI Rules stipulates that the application shall be ordinarily advertised in the journal. The necessity for public advertisement is to hear all affected persons and give the public at large an opportunity of representation/ objections. In that manner GI is different from trade mark, Copy Right etc.

 

The publication of GI application is apparently defective as what has been notified is the abridged and edited version and not the entire application or the approved version. It is not clear from any of the publication as to what supporting documents and information is furnished by the applicant. No objections can be filed to such abridged, edited version of the GI application.

 

The GI having great socio-economic dimensions, it is desirable that the same is published widely through public media, newspapers and essentially in the affected and given geographical area.  This fact is confirmed by the static’s that hardly 5-10 applications have been able to invite objections. 90% the GI proprietors are Government agencies and the registration of GI will die in their files. No efforts are made to inventory of the ‘authorised users’.

 

The procedure adopted by the Registrar GI is also highly illegal. In the case of notified proposed GI of ‘Jamnagar’ petroleum products, I happened to file objections to the registration, still pending. My request for the copy of the application and supporting documents so filed for registration was declined by the office of Registrar of GI.

 

By any standard it is impossible to file objections, unless and until you are aware about the case and its contents. Only conclusion which results from it is that the office of Registrar is highly ill equipped and incompetent.

 

It is unfortunate that GI’s in India are registered akin to the procedure applicable for the registration of Trade Marks, Copy rights etc.

 

This is one of the glaring illegalities adopted and practiced in India for GI registration. I am also making a representation with the Ministry of Commerce (DIPP) highlighting the numerous illegalities and consequent deprivation of rights to lakhs of grass root right holders.

 

More to follow.

 

India; Geogrpahical Indication

Why GI office at Chennai only?

In Indian context, GI has much wider significance. India is full of potential GI’s and perhaps the only country in entire world to have maximum GI’s.

Despite so, the Government of India has established only one exclusive office at Chennai for entire country. Whereas the other regions of the country are having maximum potential GI’s. The offices of Trade Mark, Copy Right, and Patent are established region wise by the Government.

Having only one office at Chennai has been a great hurdle in enforcement of GI laws in India. The accessibility to the poor gross rot holders is tremendously limited.

It would be more appropriate and fruitful to have GI registry simultaneously along with the other offices of IP Rights established in various regions of India.

India- Geographical Indication

Registered GI’s without ‘Authorised user’- a nullity

In India around 97 GI’s have been registered till date. None of the registered GI’s is having its registered authorised user. The GI Act 1999 makes it mandatory to have two kind of registration firstly the GI and secondly ‘authorised user’. The registered GI without having its authorised user carries no significance. No efforts have been made till date by the Govt. of India to have registration of authorised user simultaneously along with its related GI.

Nothing can be achieved in GI Laws without having its authorised users. Legally registration of GI and non registration of linked authorised user shall render existing true owner of GI an illegal user and liable for various criminal prosecution in GI laws.

Are we protecting National Heritage and Traditional Knowledge (its true owners) or murdering the same.

It calls for immediate introspection.