Geographical Indications are definite to a locality or a geographic territory. These are valuable rights which are adequately protected by a proper regulatory structure in India. The article elaborates aspects related to legal protection of GI that boosts exports and promotes country’s economic prosperity by a decent exent.
From April to December this year, around ten Geographical Indications (GI) have been registered by the Geographical Indications Registry in India. The fight for GI is no less than a battle. The GI tag is a treasure and preserved for generations. It imparts uniqueness and hence value to the possessors.
Since 2015, there has been a fight over the GI tag for Rasogulla between West Bengal and Orrisa. Finally, in November this year, the fight was won by West Bengal. The Geographical Indicator (GI) tag for Banglar Rasogulla went to West Bengal. The whole city erupted with joy and organised ‘sweet rallies’ across West Bengal in which political parties across the spectrum participated. Chief Minister Mamata Banerjee tweeted, “Sweet news for us all.
We are very happy and proud that Bengal has been granted GI status for Rasogulla.” It was Bengal’s third GI tag win after Darjeeling Tea and Joyanagarer Moa, the quintessential winter delicacy of Bengal.
Many experts pointed out the ridiculousness of GI tag for Rasogulla granted to West Bengal. Normally, GI tag has some business value attached to it. It is more so in the case of a product which is exported outside the country. In India, Darjeeling tea, Basmati rice or Alphonso mangoes have significant value attached, because they are sought after by the consumers all across the world because of their unique value and taste. Last year, Geographical Indication tag for Indian basmati rice grown in the States of Punjab, Haryana, Himachal Pradesh, Delhi, Uttarakhand, Western U.P. and two districts of Jammu and Kashmir in India was awarded by the Geographical Indications Registry of the Intellectual Property Appellate Board. The Board, however, dismissed two petitions from the Basmati Growers’ Association of Lahore, Pakistan.
Geographical Indication is definite to a locality or a geographic territory. These are valuable rights. It is important that such rights are adequately protected by proper regulatory structure. The legal protection of GI boosts exports. It helps the country’s export market promote economic prosperity of the producers.
In India, the rights are protected by The Geographical Indications of Goods (Registration and Protection) Act, 1999 ( GI Act) which came into effect on September 15, 2003, as well as by the Geographical Indications of Goods (Registration and Protection) Rules, 2002′ (GI Rules). The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) too prescribes minimum standards of protection of GIs. Articles 22 to 24 of Part II Section III of the TRIPS prescribe minimum standards of protection to the Geographical Indications that WTO members must provide. Under Articles 1 (2) and 10 of the Paris Convention for the Protection of Industrial Property, geographical indications are covered as an element of IPRs. In India, it was important to have a GI protection mechanism which protected GIs in India, because unless a GI is protected in the country of its origin, there is no obligation under Article 22 of the TRIPs agreement for other countries to extend reciprocal protection.
According to the Geographical Indications of Goods (Registration and Protection) Act 1999, “Geographical Indication”, in relation to goods, means an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods, one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be.
The Act further clarifies in Section 1(f), that the ‘goods’ means any agricultural, natural or manufactured goods, any goods of handicraft or of industry and includes food stuff. The Act gives the definition of ‘indication’ in this section which says that ‘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.
This Act is administered by the Controller General of Patents, Designs and Trade Marks, which is also the Registrar of Geographical Indications. The Act in Section 3 says the Controller-General of Patents, Designs and Trade Marks appointed under sub-section (1) of Section 3 of the Trade Marks Act, 1999, shall be the Registrar of Geographical Indications. The Act has established a Registry which is known as the Geographical Indications Registry. A GI application must be made to the Registrar under the Act, the Controller General of Patents, Designs and Trademarks appointed under sub-section (1) of section 3 of the Trademarks Act, 1999. According to Section 18, the registration of a geographical indication shall be for a period of ten years, but may be renewed from time to time in accordance with the provisions of this section.
The Act specifically mentions who can apply for GI tag and debars others from applying for GI. According to Section 11 of the GI Act, any association of individuals, 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 can apply in writing to the Registrar for the registration of the geographical indication.
After the application, the registrar has to put out an advertisement as mandated by the Section 13 of the Act and then any opposition to the application will be entertained by the Registry within three months from the date of advertisement.
It is interesting to see that the Act has specific provisions to prevent registering of GI for certain specific GIs.
In the Section 9, the Act says: Prohibition of Registration of certain geographical indications
A GI does not meet registration parameters in the following cases:
Explanation 1: For the purposes of this section, “generic names or indications” in relation to goods, means the name of a goods which, although relates to the place or the region where the goods was originally produced or manufactured, has lost its original meaning and has become the common name of such goods and serves as a designation for or indication of the kind, nature, type or other property or characteristic of the goods.
Explanation 2: In determining whether the name has become generic, account shall be taken of all factors including the existing situation in the region or place in which the name originates and the area of consumption of the goods.
This was perhaps the reason why the Appellate Board decided to grant GI tag of Banglar Rasogulla to West Bengal, not the generic term Rasogulla. The Act confers legal protection to the Geographical Indications in India. By registering a geographical indication in India, the rights holder can prevent unauthorized use of the registered geographical indication by others by initiating infringement action by way of a civil suit or criminal complaint. In the section 68, the Act has specific provisions for granting relief in case of any infringement or the unscrupulous use of the GI tag. The Acts says in Section 68 (1) that the relief which a court may grant in any suit for infringement or for passing off, referred to in section 66 includes injunction (subject to such terms, if any, as the court thinks fit) and at the option of the plaintiff, either damages or account of profits, together with or without any order for the delivery- up of the infringing labels and indications for destruction or erasure. The order of injunction under this sub section includes an ex parte injunction or any interlocutory order.
On November 14, 2017, the Union Ministry of Commerce & Industry granted “Banglar Rasogolla”- a popular Indian syrupy dessert made from ‘chhana’ (a version of cottage cheese)– the tag of a Geographical Indication (GI) to the state of West Bengal, applied through the Director, Directorate of Food Processing Industries, Department of Food Processing Industries and Horticulture, GoWB. While this is good news, a larger reason why Bengalis across the country celebrated the grant is due to a 26 months old longstanding feud over the origin of this popular sweet. The question regarding the source of Rasogolla has been asked for decades, however the battle escalated to greater heights in the year 2015 when the state of Odisha asserted that the “Rasagola” (as called in the respective state) had in fact existed in their state for over 600 years, claiming that Odisha was where the dessert first surfaced from. Consequently, West Bengal responded to these claims by stating that Rasogolla was invented by the famous confectioner Mr. Nobin Chandra Das, in 1868, providing ample documentary evidence to support the said claim. The state of Odisha once again rebutted that the sweet originated from Jagannath Temple, Puri, and that ‘PahalaRasagolas’ continued to be the most coveted sweet of the state.
It is pertinent to ascertain whether or not “Rasogolla”, is even registrable as a GI. A GI is defined as a name or sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. It is important to understand here that the neighbouring states of Odisha and West Bengal are fighting for although the same right, however in two very different preparations of namely the same product. While the white, spongey sweet dipped in a thick sugary syrup finds its roots in West Bengal, the Odisha variant is a less sweet, brown coloured, soft sweetmeat, dipped in very thin syrup. Both the sweets allegedly even taste very different. The conflict then was this – what would be the special characteristic or quality of the sweet here for it to be granted a GI? Is it the concept of the sweet itself – spherical balls, cooked with ‘chhana’ and mixed in a sugary syrup OR would it be the preparation of a specific type of delicacy in a particular method? It wouldn’t be wrong to infer that if the sweet Rasogolla itself sought registration as a GI, we would soon be seeing a hoard of other generic food items such as barfis, biryanis and poha demanding grant of a GI.
My view, therefore, is that the decision to grant a GI tag to “Banglar Rasogolla” is a smart one, especially in pausing – although temporarily – the debate over the origin of the sweet. By granting the GI status to the “Banglar Rasogolla”, the GI Registry has given freedom to Odisha to apply for the registration of its own “Odisha Rasagola”. Of course, it will have to comply with the requirements under the GI Act and file supporting documents. It is better that they file a separate GI for “Odisha Rasagola” instead of wasting time, effort & energy in fighting with Bengal.
While Geographical Indications are very important to State Governments, the consumers rarely specify the origins of the product – imagine having to specify that you want to have the “Banglar Rasogulla” every time you’re dining out with your family or going to buy Banglar Rasogolla!
Rasgoola, being already produced and sold across India, is not likely to bring any additional economic value to West Bengal after getting the GI tag. However, it is an assertion of the Bengali identity of Rasgoola.
Indian parliament passed ‘The Geographical Indications of Goods (Registration & Protection) Act, 1999’ (GI Act), and the ‘Geographical Indications of Goods (Registration and Protection) Rules, 2002’ (GI Rules) to establish Geographical Indications Registry with all-India jurisdiction. The GI tag was primarily developed with the purpose of recognising the unique identity connecting different products and places. For a product to get GI tag, it has to have a unique quality, reputation or characteristic which is attributable to its geographic origin.
A GI is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. Such a name conveys an assurance of quality and distinctiveness which is essentially attributable to its origin in that defined geographical locality.
The West Bengal’s Directorate of Food Processing Industries had applied for the GI tag for Banglar Rasogolla. The development assumes significance as there is tussle over origin of rosogolla between West Bengal and Odisha. The announcement of the GI tag is seen more as an assertion of the Bengali identity associated with the sweet than any exceptional economic value.
The impact would have been greater if Rasogolla was being exported by India to the outside world. For example, if Darjeeling Tea’s GI tag.
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