This article has been written by Swapna Gokhale, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.

Introduction

Alphonso, which is popularly known as ‘Hapus’, is one of the distinct varieties of the Mango which is prominently found in the Konkan region of Maharashtra State.  When we say Mango, automatically we connect it with Devgad or Ratnagiri from Konkan Region, right? The reason is that this particular variety possesses special characteristics which correspond to a particular region of our India. 

Since the characteristic of the Alphonso is region-specific, it cannot be recognized as Alphonso if cultivated in a region other than Konkan. Therefore, the protection against imitators from other regions is crucial.  Otherwise, the very connection between the Konkan region and the unique and distinctive characteristics of this particular variety of mango will get lost. But how can we protect this phenomenon? How can Mango farmers in the Konkan region protect their Alphonso Mango from being imitated or adulterated by people from regions other than Konkan? Can Alphonso be protected under our IP laws? If yes, under which form? Or how can we ensure that we are getting only those specific Alphonso mangoes which are cultivated and harvested in Konkan? Well, all these questions we will discuss here.

Alphonso background 

The interesting story behind the name Alphonso is stated that, in the 15th century, one Portuguese general Afonso de Albuquerque Introduced the grafting technique on mango trees to produce this variety of mango which thereafter was named ‘Alphonso mango’. Thus, the history of the Alphonso mango is more than 500 years. This most expensive and seasonal fruit arrives in the market normally between March to June. Its unique taste and texture make it the most sought-after amongst other varieties of mango in the world.

The connection between Alphonso mango and Konkan

It requires a peculiar atmosphere, specific climate condition, specific quality of soil, land texture especially hard laterite rocks (Jambha dagad), the proper slope of the land, and a distinct technique of plant grafting to make this king of the fruit. The specialty of this most excellent variety of mango contains thin skin, vibrant saffron-yellow color, special aroma, thick pulp, and heavenly taste, which makes it different and unique from others.

The Konkan coast has volcanic red soil and a hot climate with adequate humidity. The topography of the region makes it suitable for Hapus production. The taste and texture of Hapus depend on the soil and climate where it grows. There have been many attempts to grow Alphonso mangoes all across the country. But the geography and the coastal yet volcanic soil of Ratnagiri and Devgad give Hapus its uniqueness. 

Alphonso and protection of intellectual property law 

As we know the basic aim of Intellectual Property protection is to give the exclusive right to the property owner and protection against the unauthorized usage of the same. There are different types of Intellectual properties available for various goods and services such as Trademark is for protection of brand name, Copyrights is for protection of literary, musical, or artistic work. Similarly, patents are granted for inventions having industrial utility. 

GI primarily gives for agricultural, natural, or manufactured goods. It is given only for goods and not for services. According to Section 2(f) of GI Act, 1999 “goods” means any agricultural, natural, or manufactured goods or any goods of handicraft or of industry and includes foodstuff; And Section. 2(g) of  GI Act 1999, says “indication” includes any name, geographical or figurative representation or any combination of them conveying or suggesting the geographical origin of goods to which it applies. Basmati Rice, Darjeeling tea are some examples of GI from India. 

As stated above, the Alphonso is the agricultural crop cultivated primarily in the Konkan region of Maharashtra. Additionally, all those phenomenal and conventional characteristics of the Alphonso mango are not observed in mangos that are grown elsewhere than Konkan, due to lack of regional connection. This very characteristic of the fruit makes it entitled to get the intellectual property rights in the form of ‘Geographical Indication’ that is ‘GI’, which is granted under Geographical Indications of Goods (Registration and Protection) Act, 1999 (GI Act 1999).

This kind of fruit was brought under the umbrella of GI in the year 2018 so as to protect its distinctive identity and to protect it against the unauthorized sale of mangoes from different regions under the name of Alphonso. Legal Protection to Alphonso is definitely useful to promote the economic prosperity of producers of Alphonso mango in a geographical territory.

How did Alphonso acquire the GI tag?

Following bodies applied for getting GI tag for Alphonso; 

• On 12/03/2012, Devgad Taluka Amba Utpadak Sahakari Sanstha Maryadit, Jamsande, Taluka: Devgad, District: Sindhudurg, Maharashtra, India, made an application under Geographical Indications of Goods (Registration and Protection) Act, 1999, for getting GI Tag for Devgad Alphonso Mango under Application No. 379 in respect of – Mango falling in Class 31. 
• Thereafter on 26/08/2014, Kelshi Parisar Amba Utpadak Sahakari Sangha Maryadit, a/p Kelshi, Taluka: Dapoli, District: Ratnagiri – 415717, Maharashtra, India applied for the registration in Part – A of the register of GI for registration of Ratnagiri Alphonso Mango under Application No. 497 in respect of Mango falling in Class 31.  
• The Director of Research, Dr. Balasaheb Sawant Konkan Krishi Vidyapeeth, Dapoli Dist., Ratnagiri – 415 712, Maharashtra, India applied for obtaining GI Tag for Alphonso under Application No. 139 in respect of Mango falling in Class 31.                   

However, as per the order of Registrar of Geographical Indications dated May 29, 2018, Application No. 139, for obtaining GI Tag for Alphonso is merged with Application No. 379 and Application No. 497 to proceed as a single application under Application No. 139 for Registration in Part A of the Register of Alphonso in respect of Horticulture (Mango) falling in Class – 31.  Accordingly, GI was granted for Alphonso in October 2018 and the geographical area of production of Alphonso is restricted to the Konkan region of Maharashtra comprising of (five) districts viz., (i) Palghar, (ii) Thane, (iii) Raigad, (iv) Ratnagiri and (v) Sindhudurg.

All about GI Tag Protection 

1. Sui Generis System 

The very first GI system was used in France. With the rapid growth in technology, the world came closer. To bring progressive changes in free trade, especially international trade, the Indian Government, as a member of the World Trade Organization (WTO) took a series of steps to make Indian IP laws compatible with the TRIPS agreement and also to make the IP regime of India similar standard to that of international IP law. Accordingly, the Indian government enacted its Sui Generis system of Geographical Indication of Goods (Registration and Protection) Act 1999 (GI Act) that came into force on September 15, 2003, the ‘Geographical Indications (Registration and Protection of Goods) Rules, 2002 (G.I. Rules). to provide registration and protection of GI relating to the goods having a specific origin, quality, reputation and other distinctive characteristics which enables them to identify the place of origin of these goods. e.g. Basmati rice, Darjeeling Tea, Alphonso Mangoes, Malabar Pepper, Cardamom, which are all well known in the international market. India enacted its G.I. law for the country in compliance with India’s obligations under the TRIPS agreement to enforce national Intellectual property law.

The Ministry of Commerce explained the GI as, “The GI tag will assure the standard and distinctiveness which is a vital tribute to its origin in a defined geographical area.”The first good to earn a GI tag in India was Darjeeling tea in 2004. Today, around 600 products have earned this tag.

2. Fee structure 

The regular fee for filing GI registration under the Geographical Indication of Goods (Registration and Protection) Act 1999 (GI Act) is Rs. 5000/- per class.  The details of fee structure are given under rule 10(1) of Geographical Indications (Registration and Protection of Goods) Rules, 2002 (G.I. Rules) of the first schedule. (https://ipindia.gov.in/fees-gi.htm)

3. Who can apply?

Unlike patents, copyrights that belong to individuals, Geographical Indication is a right given to a community of producers in a certain area and not individuals. In view of section 11 of GI Act 1999, registration can be applied for by 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 and who is desirous of registering a geographical indication in relation to such goods. Who is granted the tag is important because it is their job to promote the goods, by ensuring maintenance of its quality and to initiate legal action if there is an infringement of the Geographical Indication. 

4. The authorized user under Geographical Indication (GI)? 

Thus, the GI act 1999 grants registration to the association of a person and not to any individual like trademark or copyright which are different nature of laws. Only an authorized user has the absolute right to use the geographical indication for the goods in respect of which registration is granted. Authorized user means any person claiming to be the producer/manufacturer of the goods in respect of which a GI has been registered. The organization or body association that has obtained the GI registration certificate creates a set of rules for the implementation. To get the protection benefits by the Registered Certificate holders, the manufacturers or producers who are interested can fill the application form and by following assessment of the work on a regular basis can become an authorized certificate user under Geographical Indication. This Certificate can be used for 10 years on the basis of yearly evaluation reports. The organizations often recover the cost of the expenses associated with it, in form of fees or subscriptions from all authorized users.

5. The benefit of Geographical Indication (GI) registration 

Geographical Indication (GI) is granted to goods/products having a specific geographical source and possesses distinct quality and standard.  A GI tag is awarded based on the following features:

• Climate/atmosphere.
• The culture that makes the products unique.
• Qualities like a pleasant fragrance, shape, structure, and vibrant color.
• Taste and aroma.
• Traditional and unique production tools.

The goods which get special characteristics, quality like saffron color, grand taste and wonderful aroma because of its features, climatic conditions, culture. This distinct characteristic is maintained for the long term which entitles it to get registration in Geographical Indication Register by the Intellectual Property office situated in Chennai. Accordingly, GI tagging is given to this king of mango to protect its distinctiveness and exclusivity amongst consumers in the market. But one question comes to mind, why seek a geographic indication when the geography of its birth is already carried in its name? Does GI tagging is only for status? No. The registration restricts the production of unauthorized products in other geographical regions, adulteration, getting a lower price than fair price for 10 years, and also the protection period can be renewed. This creates more occasions for the local producers of the region to get more monetary benefits. But this requires strict adherence to the rules in regards to production methods and standards. 

Following are the most relevant benefit due to GI registration –

• Under S. 20 of GI Act 1999, a person is not allowed to initiate any litigation to stop or to recover damages for, the infringement of a geographical indication that is not registered, except passing off action.
• GI registration will give you the right to sue for infringement, apart from exclusive rights to use geographical Indication to the goods.
• Having GI registration prevents unauthorized usage of registered GI by others.
• It protects the goods from being sold unauthorizedly which are manufactured in another region than its origin.   
• It prevents the false practice of selling low-quality goods. 
• It also enables the export of goods to the outside country by providing legal Protection.  
• It promotes the economic prosperity of Producers. 
• It enables seeking legal protection in other WTO member countries.

6. Validity period  

A Geographical Indication is registered for a period of 10 years. To continue the registration, the registration needs to be renewed from time to time for a period of 10 years at a time. Renewal is done for further periods of 10 years each. Nonrenewal of Geographical Indications is liable to be removed from the register.

7. Registration compulsory? 

Like in the case of copyright or trademark the registration of GI is also not compulsory. However, registration gives better protection to the user with respect to the goods as stated above.

Enforcement of Geographical Indication (GI) protection for Alphonso  

GI registration of Alphonso is undoubtedly important for protecting the distinctiveness and exclusivity of the goods amongst consumers in the market. But a strong enforcement mechanism should be in place along with registration on the background of the fact that Alphonso production is also found in various regions of the country other than Konkan. The basic object of GI protection is not just protection but also warrants rigor to the product’s quality and authenticity, which can help to fetch a reasonable higher price. Article 1(1) of TRIPS says that “members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice”. Accordingly, the Indian GI act 1999 provides relief in the form of injunction and damages for the infringement of the registered GI, by applying before the district court. Below are some relevant sections under GI Act 1999.

• S. 21 – the right to obtain relief in respect of infringement of the geographical indication.
• S. 23 – Registration of GI is prima facie evidence of validity.
• S. 25 – There is the prohibition of registration of GI as a Trademark.
• S. 39 – Provides penalty provision for falsification of GI 
• S. 66 – Suit for infringement to be filed in District court. 

Traceability system 

Prevention is better than cure! Though there is a legal remedy of filing suit in court against the infringement of GI is available under the law, there is no lawful system in place to identify the authentic Alphonso Mangoes of Konkan. The consumers having average intelligence cannot identify the authentic Alphonso. Thus, he has to rely on the words of mango vendors. To restrict the false sale of Alphonso Mango by unauthorized fruit producers/vendors is really a challenging task for the farmers in Konkan. In order to overcome this difficulty recently one technology company namely ‘Innoterra Tech’, which is an Innoterra group company, came forward with their innovative traceability solution in the form of a sticker tag of   FarmTrace™ to trace the source of origin of the Alphonso. Consumers can scan the QR code on the sticker to understand the GI status and source of the Alphonso mango, right up to the farm level. This makes it easier for them to select the original Alphonso, the most premium variant of mango available globally. However, this technology is still in its infant stage. The effectiveness and utility benefit of this sticker is yet to be proved.  

Limitation on enforcement  

However, there are some impediments to the effective enforcement of GI. 

• In case of infringement or imitation of GI registered foodstuff like Alphonso which is perishable in nature, this time-consuming legal remedy in court will not be helpful in view of the time and money required to do the same which may weaken the very object of the GI act 1999 of promoting the business of conventional goods of a specific region. 
• Secondly, the purpose of obtaining registration is to prevent adulteration. The goods which are symbols of a particular region need to reach consumers from that region only. But in the case of fruit like mango, it arrives in the market in bulk quantity from various regions, every year wherein the same gets repacked by the merchants and they distribute it to the different areas. Thus, the possibility of mixing the non-Alphonso Mangoes with real Alphonso cannot be ruled out. The absence of a watchdog system may create the possibility of a mixture of non-Alphonso mangoes with Alphonso. 

Case Study for infringement of GI  

Tea board of India Vs ITC Ltd; this may be the first case on infringement of a registered geographical indication (GI) decided by Indian Court. In this case, Tea Board of India the registered proprietor of the GI, Darjeeling, filed a suit against ITC, inter alia, under the Geographical Indication of Goods (Registration & Protection) Act 1999, for infringement of its registered GI against the use of the name “Darjeeling Lounge”. It was alleged that such use amounted to unfair competition including passing off. The Calcutta High Court while dismissing the suit opined that, there is no infringement found under the Geographical Indications of Goods Act because the defendant’s ‘Lounge’ is not relating to goods. Plaintiff’s rights conferred by the registration of the word ‘Darjeeling’ are only in relation to tea. ‘Darjeeling’ is not a trademark. It is only used to indicate geographical indication of a place of origin of tea originating from Darjeeling. Court also held that the Geographical Indications Act 1999, can only extend to goods, and admittedly the defendant’s lounge doesn’t fall within the category of goods. The business area of plaintiff and defendant is totally different and therefore there is no unfair competition under the definition of GI Act 1999.

Conclusion 

Being an agricultural country with vast biodiversity, every 5 km we find different products in India. In the case of Alphonso, it is not the seed, but the specific geographical condition of Konkan that makes the king of the fruit a special variety. Alphonso is also grown abundantly in many regions like Karnataka, Kerala, other than Konkan. But because of the connection of natural characteristics of the particular Konkan region with the Alphonso, the similar quality of Konkan Alphonso won’t be found in other regions. And in order to protect the same quality Alphonso, getting registration under the relevant IP law was a must. However, getting a GI tag without marketing and maintaining quality is of no use. To ensure the quality of the goods the effective enforcement mechanism becomes a vital part of all this process. A registered GI very well gives the right to the GI tag holder to stop any person or entity from unauthorisedly using the registered mark of GI or its name in a product that is deceptively similar to the registered product having different origins. Also, a registered GI gives the right to take action against infringement. But the absence of a practical enforcement mechanism against copycats in respect of GI-protected goods weakens the purpose of this law in the sense it acts like a gun without bullets. The present legal provisions do not sufficiently provide efficacious remedial enforcement of the GI. The effectiveness of the traceability sticker system is not yet proven. Thus, till the time actual benefit comes in front of the mango farmers the importance of GI will not be recognized. Being a resident of Devgad village of Konkan Region for almost 20 years, it was a proud and pleasurable moment for me, when Geographical Indication (GI) tag was granted to our beloved Alphonso of Devgad, Ratnagiri, and adjoining areas of Maharashtra. But unless the cost-effective enforcement mechanism for the protection of Alphonso against the false sale by unauthorized vendors comes in place, the intended usage of GI registration cannot be achieved. 

References

1. https://economictimes.indiatimes.com/news/economy/agriculture/king-of-mangoes-alphonso-gets-gi-tag/articleshow/66087663.cms?from=mdr
2. https://www.mondaq.com/india/trademark/688456/protection-of-geographical-indications
3. https://www.trademarkclick.com/education-blog/mangoes-from-konkan-finally-get-a-distinctive-geographical-indication-gi-tag
4. https://www.mondaq.com/india/trademark/655394/geographical-indications-law-in-india-everything-you-must-know
5. https://openthemagazine.com/features/who-owns-the-alphonso/
6.  https://ipindia.gov.in/writereaddata/Portal/IPOJournal/1_495_1/Journal_98.pdf
7. http://www.fnbnews.com/Top-News/konkan-region-alphonso-mango-gets-gi-tag-individual-recognition-sought-43823
8. https://www.downtoearth.org.in/blog/agriculture/the-alphonso-mango-is-now-completely-traceable-76863
9. https://www.innoterra.com/buying-the-real-alphonso-now-made-easier-the-gi-tagged-indian-mango-goes-completely-traceable/

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