Author: Marsha S. Cadogan | 5 min read
This article was originally published by the Lawyers Daily.
Basmati rice has a significant consumer base throughout many parts of the world. The rice is known for its distinct taste and appearance, primarily owing to its terroir (specifically the soil, climatic and valley conditions under which it is grown). After years of legal battle to safeguard the proprietary interest of the rice through intellectual property (IP), geographical indications (GI) status was finally granted in India in 2016. Since there are little or no benefits to a rights holders’ IP without its commercialization and protection in foreign markets, India is now seeking to register the basmati GI designation in the European Union. The GI registration is opposed by Pakistan on the grounds that India does not have an exclusive right to use the Basmati name to refer to rice grown from the region. The basmati name is also used in Pakistan to refer to rice grown in the Punjab region of its country. Why is this issue relevant to the Canadian legal audience? This note takes a closer look at one of the pre-requisites to GI registrations: who is entitled to be a GI rightsholder, what are GI or territorial zones and how do these issues relate to product registrations? These questions are crucial to the sustainability of GI products in global markets, and as the Basmati rice conflict shows, sheds light on the type of hurdles GI registrations may need to overcome in foreign jurisdictions.
The Rise of Interests in Food-based GIs Globally
In recent years, food-based GIs have steadily grown in popularity among many countries outside of Europe. One main reason for this is the proliferation of European (EU)-initiated free trade or association agreements requiring parties to provide GI protection for food-based GIs on a level similar to or comparatively no worse off than the recognition given to wine and spirit-based GIs by most World Trade Organization countries. The EU provides a high level of protection for GIs, including food-based products. Securing GI protection for Basmati rice in the EU would likely help to leverage the value of the designation to its rightsholders.
Why GI Product Specification can leave some Food Producers high and dry
The governance of GI schemes can become one of the most crippling aspects to GI registration. GI schemes are the governing bodies for GI designations and usually include farmers, food processors (if applicable) and distributors of the product. A well-governed GI scheme will also include quality control liaisons, and individuals tasked with the mandate of forging relationships between the product, other industries, and sectors in the economy. Each GI scheme lay out the product specification requirement for the product.
One such specification relates to the land space or region which should be considered as the geographical indication zone (that is, what scientific, legal or cultural justification exist to specify certain areas as exclusive places for the making of GI products?). In practice, this means that if a food producer of product X is located in Stoufville Ontario, and the producer association decides that product X is produced well according to the association’s specification only in Richmond Hill Ontario, then the food producer in Stoufville is precluded from using the GI name on its product. Sometimes, the start and ending points of a GI territorial zone can be a legal as well as a political issue. Pakistan’s main opposition to the registration of Basmati as a GI in the European Union is likely a mixture of law and politics, played out in the form of contestation over GI ownership. In India, the exclusive use of the Basmati name is designated to rice grown in certain specification from seven parts of northern India: Punjab, Haryana, Himachal Pradesh, Delhi, Uttarkhand, Uttar Pradesh, Jammu and Kashmir. Areas outside of these regions in India are not entitled to use the Basmati name in reference to rice in the sale, marketing or distribution of their product. Meanwhile in Pakistan, GI laws were enacted in March of 2020. Pakistan is therefore in its early stages of working with the GI legislation.
GI boundary disputes
Conflicts over where the geographical boundaries in GI designations should be drawn are more usual than one would think. For example, India’s Supreme Court recently heard disputes brought by producers within a designated geographic zones who opposed the granting of rights to another group to use the basmati GI designation on their products. A few years ago, the Court of Justice of the European Union heard a case brought by a German producer of pickled gherkins who was left out of Spreewalder’s pickled Gherkins GI geographic zone. The gherkin producer sued a competitor who was also precluded from the zone, but still using the GI name “Spreewalder style’’ on their products. Disputes over which areas should be specified as the GI zone for the purposes of GI registrations are likely to be more common in three situations. First, when the GI legislation is fairly new to a jurisdiction and there is little experience or interest by a main producer group in working with other producers located in close proximity to the contested designated areas, conflicts may arise. Second, if the product already has a well-known presence in global consumer markets (such as Basmati, Darjeeling tea) there may be a tendency for some of its producers to collaborate with ‘’elite’’ producers to form producer groups, thereby excluding small-scale producers from using the designation. Third, when GI product specifications are poorly drafted and little research is done on what makes the GI food unique, its specifications will likely be challenged by competitors or excluded but interested parties.
Back to Basmati rice
To Pakistan and India, Europe is one of their most relevant export markets for Basmati rice. Therefore, crucial market interests are at stake. The lesson from this dispute to Canadian business with interests in registering food based GIs (especially) is: to have a sound GI strategy in place, using a collaborative partnership approach when designating GI zones and in developing rules concerning all product specification matters.
This article is for general information purposes only and is not intended to be legal advise. Always consult a qualified legal representative for advise on geographical indication matters.