Vexmati, Part II

Legislative awareness is lacking

Confusion surrounds l’affaire basmati, especially on the trademark cum geographical indications question. India has announced that it will negotiate and try to obtain higher standards of protection for geographical indications. But what has happened to the Geographical Indications of Goods Act of 1999? The grounds for confusion are that while the Union commerce and industry minister Murasoli Maran maintains that this has been passed and the rules need formulation, his deputy, Mr Digvijay Singh, maintains that the statute was passed by Rajya Sabha, but not by Lok Sabha. Obviously, both cannot be right. One can presume Mr Maran is right. The difference between a trademark and geographical indication is that the former is identified with specific producers, while the latter with specific geographical regions. Unfortunately, the TRIPs agreement does not require specific statutes for protecting geographical indications. Protection through any legislation is fine and the US protects them as certificate marks under the Lanham Act of 1946. Registration is not mandatory, but always helps. Has India taken steps to register basmati as a certificate mark?If Darjeeling tea could be so protected, why not basmati? Or was India waiting for domestic legislation, since geographical indications don’t have to be protected unless they are protected in their country of origin?

There is also a difference between appellations of origin and geographical indications, since the former can cover product characteristics that transcend mere geographic description. Appellations of origin are more appropriate for basmati, though Article 22 of TRIPS talks of only geographical indications. Has India made any attempts to replace geographical indications with appellations of origin in Article 22? Nor is the trademark issue that simple. Are there Indian exporters who export branded basmati to the United States? Have they got these brands registered as trademarks? If not, infringement suits on grounds of confusion, deception or passing off are difficult to establish, although suits for trademarks granted to RiceTec or other companies are easier. India may have won trademark violation cases on basmati in Britain, but that does not guarantee success in the US. The conclusion that emerges is one of lack of legislative awareness and preparedness. This does not augur well for the future.