This article has been written by Mohd Aman Khan Afghani pursuing the Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. This article has been edited by  Aatima Bhatia (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho). 

Introduction

The Biblical story of Goliath and David in which  David defeats the giant, Goliath,  is often used symbolically to represent the disputes in which the small player defeats the bigger player. In the disputes pertaining to IPR, it is very much true that size does not always matter. There are many IPR Disputes in which  it can be observed that the smaller industry players have defeated the bigger industry players. It can be said that the advantage afforded to the bigger player by the possession of financial resources doesn’t always guarantee victory in the legal battlefield.  Here, in this Article, is the dispute between PepsiCo. Holdings and the local farmers, which would be analyzed and which is analogous to the conflict between David and Goliath.

PepsiCo. dispute : case of David vs Goliath

In 2019, PepsiCo. India Holdings, (“PIH”) which is a United States based corporation, brought  a lawsuit against some of the local farmers of Gujarat, India in the City Civil Court (Commercial Court Branch) of Ahmedabad. PIH had also filed the lawsuit in other cities for the infringement of the FC5, which is a registered variety of Potato, the same variety which is used in Lays Chips. PIH had contended that the above variety of Potatoes is the hybrid of FL 1867 and Wischip varieties, and  PIH had also contended that they are the registered breeders of the same till 2031. In simple words it can be said that PIH had contended that the Farmers against whom the lawsuit was brought by  PIH were growing and selling that variety of Potato which is registered by the PIH under Protection of Plant Varieties and Farmers Rights Act (“PPV & FRA”), 2001 thereby violating the Intellectual Property Rights (“IPR”) of PIH on which they have the exclusive right. PIH had previously used the system of Contract Farming in Punjab in 1995, after which they abandoned this system, replacing it in 2004-2005 with a system through which they would provide licenses to some of the farmers to grow the stated potato variety. This was part of their ‘buy back’ system, which was the subject of the dispute.  PIH claimed that because of the activities of the Farmers, the collaborative farming system and the rights and interest of the farmers who are engaged with PIH were getting violated and suppressed. PIH sought Permanent injunction as relief in order to restrain the farmers from growing the variety of Potato which was registered by PIH and also passing of action was sought in order to pass off such products as those of PIH. 

In response, the farmers countered that they had grown  the potatoes from the seed which they saved. Moreover, their counsel argued that the farmers were completely unaware of what they were growing, and even if they were aware, even then it was completely immaterial under the statutory rights which were provided under the aforesaid Act.   It was also contended from the side of the farmers that PIH had hired a private detective agency which was completely illegal on their part as the employees of that agency disguised themselves as the buyers and then those disguised buyers collected the samples from the farmers without disclosing the real intention behind collecting the  samples from the farmers.

After the above episode the Court acting in a conscious manner appointed  Mr. Paras Sukwani, an Advocate as their Court Commissioner in order to conduct the enquiry of the above mentioned matter of dispute and thereafter to prepare a report and forward the same to the Shimla bases Potato research institute for DNA Analysis. On 8.04.2019, the Court issued an ex-parte and interim order whereby the farmers were restrained from growing the variety of potato which was under dispute on the finding that the prima facie case had already been established.

The rise of activism pertaining to farming

After the Claim of PIH a wave of social activism had started in which several farmers groups and lobbies had started to build pressure to withdraw all the suits that were filed against the farmers producing these potatoes. The groups and lobbies of Farmers approached the Chair of the PPV&FRA Authority, Mr. KV Prabhu for the sake of some remedial measures. Contrary to the above, PIH took the adverse route. It is very important to note here that the PPV&FRA is enacted to protect the rights of the farmers and simultaneously also to protect the Intellectual Property rights in a balanced way.

Legislative intent of the law

It can be said that  Intellectual Property is unique as it is the fruit of human intellect, or we can say it is the product that is produced by the Human Mind. Intellectual Property rights safeguard the product of the human mind, which in turn helps the innovators to safeguard their creation and in this way a conducive environment is created for people who are innovators and whose intellect needs protection. 

Here the Act which is in question is the Protection of Plant Varieties and Farmers Rights Act and it is the legislation that is enacted to support farmers and their intellectual property rights which is evident from the name of the act. 

If we take into consideration the present dispute in light of the aforesaid act it can very well be pointed out that the action of  PIH against the farmers is very much against the objective of the aforesaid Act and it is somewhere going against the very object of the Act. It can be said  PIH has committed many breaches like bringing a Lawsuit against the Farmers. Furthermore,  PIH never approached any Farmers body and then hired  a private detective agency for the collection of incriminating evidence which could be used against the farmers. It can very well be observed from the series of events which took place in the above dispute between the farmers and PIH that the litigation which was brought by  PIH was very premature, unnecessary and prompted by the fear that their intellectual property owned by big MNCs would go into the hands of farmers.  

Offer for negotiation

After anticipating the rise of  social litigation which is growing in the form of  social pressure which is being exerted by the Farmers groups and other activists,  PIH had offered a unilateral settlement according to which the farmers were asked to refrain from using any seed variety which is registered in favor of PIH. Farmers were also asked to surrender their existing stocks and asked to enter into a Collaboration arrangement with PIH according to which they would buy the seeds from PIH and then the produce from those seeds would be sold to  PIH. From the offer of  PIH it can clearly be seen that  PIH has never considered the benefit and interest of the farmers and also they were trying to bring the farmers to  a position where they would be left at the mercy of big MNCs which have their own lobbies.

PIH withdrawing its lawsuit

Many activists devoted their attention to the fact that the faults which are there in the International Legal Framework pertaining to Intellectual Property rights had impacted the Domestic legislations pertaining to Intellectual property and even the rights of the farmers had been affected adversely and this crisis of suppression of farmers rights has become an important issue. It has to be noted that whenever any big MNC is claiming monopoly over the plant variety or variety of seed then it completely goes against the very objective of the PPV&FR Act and also against the very objective and the spirit of the Convention on Biological Diversity, 1992, the main objective of which was to create and facilitate the sustainable use and development of Bio resources and also to conserve the same. So under the Act the protection and maintenance of the genetic diversity of bio resources is paramount. In the wake of public criticism against the action of PIH, it announced the withdrawal of all the lawsuits against the farmers.

Conclusion

So in conclusion it can be said that the action of  PIH is not at all appropriate as they were trying to create some sort of food monopoly and this monopoly was one or the other way trying to harm the sovereignty of farmers which is their inherent right and that sovereignty will definitely affect the Sovereignty of the Country. The main objective of PPV&FR Act is to protect the rights of the Farmers and to recognize their contributions which are being made by them in conserving, safeguarding and also  all the positive steps they have taken in making available genetic resources pertaining to plants so that new plant varieties can develop and if we see the aforesaid act of the PIH then it can very well be understood that it is completely against the very objective of the PPV&FR Act.

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