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New Zealand High Court, Kenya’s Court of Appeal dismiss APEDA’s plea on GI tag for the aromatic rice

India’s attempts to obtain exclusive rights to market its basmati rice have received a jolt in New Zealand and Kenya. Basically, both cases are interpreted as setbacks for New Delhi in obtaining a Geographical Indication (GI) tag for the long-grained aromatic rice. 

The New Zealand High Court dismissed an appeal by the Agricultural and Processed Food Products Export Development Authority (Apeda) against the dismissal of its application for a certification trade mark or certification mark for India’s basmati rice. A copy of the ruling made on October 30 has been made available now. 

Apeda, the nodal authority for implementing the GI tag, sought the certification mark from the Intellectual Property Office of New Zealand (IPONZ) in February 2019. Five years later, the Assistant Commissioner for Trademarks rejected India’s application, saying New Zealand’s Trade Marks Act, 2002, prevented registration of the Basmati word mark.

IPONZ’s decision

In another blow to India’s efforts to get a GI tag for basmati, Kenya’s Court of Appeal, in a ruling last month, dismissed Apeda’s plea against a Kenya High Court ruling against its opposition to the registration of the trade mark with Basmati as a component by Kenya’s Krish Commodities. 

The Kenyan company had sought registration in 2009, following which Apeda filed its opposition. Kenya’s Registrar of Trademarks rejected the opposition on May 17, 2013. The case was taken up in Kenya’s High Court, which in April 2017 upheld the Registrar’s decision. Following this, Apeda made a second appeal at the Court of Appeal.

In the case of New Zealand, the High Court upheld the IPONZ decision that the basmati growing area (BGA) comprises India and Pakistan, and that granting certification trade mark protection for Indian basmati would unfairly prevent rice grown in the Pakistan part of the BGA from being sold in New Zealand.

Australian ruling

It pointed to a December 2022 ruling by a Delegate of Australia’s Registrar of Trade Marks that the word “Basmati is incapable of distinguishing rice certified by APEDA from genuine basmati rice produced outside India”.

The High Court found Apeda’s two safeguard “refinements” in its application to protect the other genuine producers as ones that cannot solve the contradiction at “the heart of its application”. 

Kenya’s Court of Appeal, on the other hand, said basmati has not been registered or formally recognised in Kenya. Without such registration or formal recognition, Apeda lacked the legal footing to object to Krish Commodities’ trade mark applications, solely on the ground that they incorporated the word “Basmati.” The Court said there is no record to show that Krish Commodities’ composite marks are misleading or prohibited under Kenyan law.

Facing scrutiny

An international GI expert wondered why Apeda has not been able to get a single GI tag registration abroad for Indian basmati rice. “Basmati got the GI tag in 2016. There should be an independent review of whether the cases have been handled properly in these nine years,” the expert said. 

S Chandrasekaran, author of the book “Basmati rice: The natural history of Geographical Indication”, said the “Euro-centric definition” of GI is facing scrutiny from the New World.  “Until our belief and idea of GI is seen through the prism of our civilisation and unless it is effectively linked with the ‘reputation and origin’ test in the geo-cultural perspective, we will face hurdles,” he said.

The New Zealand and Kenyan courts dismissed Apeda’s plea seeking protection for its GI tag under the Trade-Related Intellectual Property Rights. 

Source : thehindubusinessline