This article has been written by Ayush Sahay, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho.

Introduction

Now we all know India and Pakistan have never been allies, but what if I tell you there once was a time they actually were. No not when Pakistan was a part of India, we are talking about the 1990’s here. Now this alliance came into existence because of RiceTec, an American company. What happened was that this company in 1997 went ahead to obtain a patent for the Basmati rice strain, a kind of strain that historically had never been grown in the United States of America. 

The series of events that followed was that India was quite unhappy with such approval of patent since Basmati has been a part of India’s heritage for a really long time which can be seen being mentioned in the poem Heer Ranjha, by Varis Shah, dated back to 1766. India was ready to fight this company and challenge the claims of the American company.

The only problem India was going to face was that they were going to fight an intellectual property right infringement case against an American company at a time when they did not have any powerful intellectual property rights. This is where our neighbour Pakistan came in to support us, forming an alliance because both Pakistan and India share the same Indo-Gangetic region where farmers on both sides majorly deal in cultivating Basmati rice. On the other hand, RiceTec put out an explanation that the registered Basmati here in talks was quite different in all aspects when compared to the Basmati that was being produced by the farmers in the Indo-Gangetic regions. RiceTec had been issued patent for three things:

1. The rice that they grew has certain similarities with Basmati;
2. The grain that was produced by this plant; and
3. Selection of the rice depending on their starch index. 

This case went on until 2001 after which RiceTec took back 15 of their claims out of the 20 claims they had submitted and in the year 2002 they started bringing out their goods after rebranding it. In this article we aim to unfold the series of events that have happened since 2002 and what G.I. tags are, what their value at the international level is and how are they governed. 

What is a Geographical Indication tag (G.I.)?

In layman’s language, after going through the due process of registration, when a G.I. tag is granted to make sure that no one else who produces the same product can use the name and logo for selling their product in the market, because a G.I. tag gets associated with the place the above-mentioned product is being produced at. 

And by definition, a G.I. tag is defined as “a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. In order to function as a GI, a sign must identify a product as originating in a given place (in layman’s language to identify a good as being originated in a particular territory/ location) and these qualities, characteristics or reputation of the product should be essentially due to the place of the origin” This means that G.I. tags are a really important part of the Intellectual Property Right laws, for trade purposes.

G.I. tag and its International Value

G.I. tags under the Paris Convention are a part of the Intellectual Property Rights. The Convention basically applies in its broadest sense to all kinds of properties that are industrial in nature. These properties include trademarks, models, patents, trade names, industrial designs and geographical indications (G.I.).

The G.I. tags at the International level are governed either partly or entirely by a few treaties and agreements excluding the Paris Convention which has been discussed earlier. Some of them are mentioned below:-

• Madrid Agreement for the repression of False or Deceptive Indications of Source on Goods (1891)
  • As per this Agreement any goods that on importing have a deceptive indication or are misrepresenting the source of its production with indicating that the produced good either directly nor indirectly is a part of the actual place of origin, such goods should be seized on import and the import of such goods should be prohibited. 
• Lisbon Agreement
  • “The Lisbon Agreement provides for the protection of appellations of origin, that is, the “geographical denomination of a country, region, or locality, which serves to designate a product originating therein, the quality or characteristics of which are due exclusively or essentially to the geographic environment, including natural and human factors”.”
• Trade Related Aspects on Intellectual Property Rights (TRIPS)
  • “TRIPS is an agreement signed by the World Trade Organization to govern the G.I. tags.  It establishes minimum standards for the regulation by national governments of different forms of intellectual property as applied to nationals of other WTO member nations. The TRIPS agreement introduced intellectual property law into the multilateral trading system for the first time and remains the most comprehensive multilateral agreement on intellectual property to date.”

The World Intellectual Property Organization also takes a fair share of initiatives to make sure that the G.I. tags and Intellectual Properties at international level are not a part of any legal tussle between countries.  

Present Day Problem related to the Basmati Rice G.I. tag

India in 2019 went ahead to register Basmati rice’s GI in the European Union, which caused an outrage from our ally, Pakistan mainly because they contribute to almost 35% of the total produce of Basmati Rice. But Pakistan was facing a similar problem to what India had faced in the 1900’s with regards to their intellectual property rights, more specifically their GI (Registration and Protection) Act, 2020. They had not been able to register the Basmati grown on their land under any laws, since no such laws were in place when they had opposed India’s filing for the G.I. tag. But now that they have the laws, they have a strong case in their hand for which many experts have worked.

Opinions of experts

Some experts believe that this will be a fight that will continue for ages and in case either they do win, the other party will become highly affected since they will then not be able to sell their Basmati’s in the European Union. The other suggestion that a lot of experts believe could possibly be the only option is if both the countries file a joint application, like several other transnational tags that have been applied for in the E.U. an example for which is ‘Maasvallei Limburg’ (wine) a Belgian and Dutch protected designation of origin

What can be the possible grounds on which Pakistan can oppose?

The Article 10 of the Regulation provided by the EU that has to be followed for registering the G.I. tags consists of the grounds on which any party who is opposing the application can oppose and as per a personal analysis and with reference to text available on the internet the reasons for such grounds not being able to work are given along with the grounds.

• Article 10 (1) (a): requires the opposition party to demonstrate that the criteria for basic eligibility (under Art 5) and product definition (under Art 7(1)) are not fulfilled.

In this case, India has seemed to have fulfilled all of the criteria for PGI status. Also to note the fact that India has not included the state of Madhya Pradesh in its application, since if it would have then India’s case would’ve become weak because the Article 7 (1)(c) talks about delimited geographical area. 

• Article 10 (1) (b): examines if the new name is incompatible with the names of plant varieties and animal types, as well as homonyms and trademarks.

In this case the name Basmati has no conflict with any of the categories that have been aforementioned

• Article 10 (1) (c): needs the opposition party to show that the registration would jeopardize the life of goods that have been on the market legitimately for at least five years prior to the publication date.

Now this is one clause under which Pakistan has a strong hold by stating that as per a 2004 European Council resolution on a Pakistan-EU deal, duty-free imports of some varieties of Basmati from Pakistan are permitted into the EU. Pakistan could also bring the councils notice to the RiceTec situation, in which India acknowledged that Basmati rice is grown in Pakistan.

• Article 10 (1) (d): is concerned with the provision of facts from which it can be determined that Basmati is a common name.
  1. In this case India can easily show the relentless pursuit of APEDA to make sure that the G.I. tag for Basmati is not hampered and it can also show proofs of how they have spent close to about 250-350 Crores to handle any and all legal actions against Basmati and for in order to promote and register the same.

Why has this two-party dispute become a tri-party dispute?

This dispute on Basmati which was only a two party dispute between India and Pakistan has now become a tri-party dispute having included another neighbor of India, Nepal. 

Nepal opposes India’s application for three reasons: 

1) Basmati is historically grown and eaten in Nepal; 

2) Nepal has collaborated intensely with national and foreign scientists to cultivate various kinds of rice using local basmati landraces since 1965; and 

3) Basmati has social and cultural links with Nepalese populations. 

The acceptance of the opposition by the EU, on the other hand, is contingent on the documentary evidence that Nepal will be expected to present to the authorities. Nepal does not have its own G.I. statue and protects all of its G.I. tags under the trademarks law of the land. 

Many say that Nepal’s statements as an opposing party are strong but the real question that remains is whether they will be able to provide proper documentation for the same. 

With regards to the entire dispute between India and Pakistan and now Nepal, it is also important to note down that India has already filed an application for Basmati Rice’s G.I. tag in 19 countries and so far they (the tag and logo) have been registered in four different countries, namely: 

1. United Kingdom
2. South Africa
3. New Zealand, and
4. Kenya

Both India and Pakistan have approached law firms to help take care of any and all legal matters regarding the legal matter associated to basmati rice. Though there is very little information about the firm approached by the Indian government or the Nepal government’s strategy, the Pakistan government is to select between two international law firms that are based in Brussels, 

1. Messrs Altius International Law Firm 
2. Messrs Liedekerke Wolters Waelbroeck Kirkpatrick

Conclusion

In this article, we talked about how a bag of basmati rice which is a very common thing that any Indian or a Pakistani thinks to be has a lot of legal history on its back and is still going through things similar to that. This legal dispute that had started between India and an American company, RiceTec which then found support from Pakistan has turned into a dispute the ones that were supporting each other. India not only has to defend itself against Pakistan but also Nepal in this dispute. 

The Agreements and Organizations that are present at the International level to ease out the process of intellectual property disputes have been helpful in the past, one of them being the principle of filling for a G.I. tag jointly. One can say that if the countries involved in this dispute were not the ones who have tense situations at the borders as they share them with each other than the principle of applying for a G.I. tag jointly would have been possibly the best option available. 

At present none can pronounce what will be the end product of this dispute, but since times have been changing and challenges have increased for all of the 3 countries involved in this dispute, only a Utopian land is where such registration will be possible. 

References

• https://www.wipo.int/geo_indications/en/#:~:text=A%20geographical%20indication%20(GI)%20is,originating%20in%20a%20given%20place.
• https://www.europarl.europa.eu/doceo/document/E-8-2018-001928-ASW_EN.html
• https://spicyip.com/2020/11/india-vs-pakistan-dispute-over-basmatis-gi-registration-in-the-european-union.html
• https://finshots.in/archive/the-basmati-wars/
• https://www.dawn.com/news/1587985      
• https://poseidon01.ssrn.com/delivery.php?ID=746089005127107065001124107122018000058054059002002048118073126011067097068115070074003063123097024005008127008087075097101011039032060058020121095028025024087122048030038092115100078098117071015071094101028103121076016084104096068021108119112019096&EXT=pdf&INDEX=TRUE 

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