Going about it the right way
According to a couple of news items published recently in an English weekly and an Urdu daily respectively, “India has been successful in getting the Basmati brand of Rice registered in its name in the Indonesian market, whereas it should have been Pakistan’s prerogative to register it, because Basmati belongs to Pakistan”.
Let us just not be investigative about the veracity of the news items and try to understand what the real issue is, because the claim of ownership of Basmati between India and Pakistan has been in the news now for many years and thus far there is no clear verdict as to who really owns the Basmati; Pakistan, India or both.
Owning Basmati here means that any of the two countries can register it as an exclusive product of their country, because it is produced in a particular region, having a particular quality, reputation and characteristics of that region, which bring Basmati or any other such product under the definition of Geographical Indication (GI).
The claim of Basmati ownership as GI between India and Pakistan is in litigation both in Pakistani and Indian courts
GI is covered under the scope of World Trade Organisation’s (WTO) agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and if it is established that a particular product falls under the definition of GI, the country or region producing that product can claim it as its intellectual property and may not allow any other country to use the same name or reputation, because it may create confusion among the consumers as to what is the real origin of this particular product.
The claim of Basmati ownership as GI between India and Pakistan is in litigation both in Pakistani and Indian courts. According to The Financial Times (January 2015) Basmati Growers Association (BGA) in Pakistan have Basmati GI tag partially registered in their country and a litigation was going on in a Pakistan court between them and India’s APEDA (Agricultural and Processed Food Products Export Development Authority) over the GI tag given to Basmati rice from Pakistan. BGA has also appealed against granting of GI tag to Indian Basmati rice in Intellectual Property Appellate Board (IPAB) of India. BGA was of the view that Basmati is a name for a slender, aromatic and long grain variety of rice grown in the specific geographical area at the foothills of the Himalayas in Pakistan.
On the other hand, APEDA had filed an application with the GI Registry of India to register the name Basmati for rice covering Punjab, Haryana, Delhi, Himachal Pradesh, Uttarakhand and part of Uttar Pradesh and Jammu and Kashmir.
Interestingly, the conflict of owning the registration of Basmati is not just between India and Pakistan, but it also exists within these countries as well.
According to Rice Exporters Association of Pakistan (REAP), the government of Pakistan, and not the REAP or Basmati Growers Association (BGA) or any other private body, should own the Basmati as GI. REAP is of the view that by giving the GI right of Basmati to any association, it may monopolise it which will be uncompetitive and that particular association may also manipulate the prices as per its wishes.
BGA is of the view that the registration of Basmati as GI is the sole prerogative of the growers (400 growers approximately in this case), because the concept of GI is area specific and principally it is the grower which should be given the right as basmati is grown in a particular region and the farmers or growers belong to a particular region not the exporters.
Pakistan doesn’t have any GI law as yet and protects the GI under Trademarks Ordinance 2004. It is noteworthy here that under Collective Mark provision of Trademarks Ordinance, any private body can apply for registration of any GI be it Basmati or any other.
As Pakistan is a responsible member of WTO and TRIPS in this case, all the matters related to disputes are brought in the WTO by a country and not by any association
As per Trade Mark Registry of Pakistan’s (TMR) standpoint, this problem of Basmati ownership as GI may never be resolved, because naturally, everyone would like to establish its own monopoly and reap all the profits coming out of the export of Basmati in the long run. One should think of the related negative externalities coming out of it, which are really damaging the country’s economy.
Anyway, going about it in a rational way, the Basmati should be registered under Certification Mark Regime (mentioned in Trademark Ordinance 2004) and there should be a Certifying Authority, which can be Trade Development Authority of Pakistan (TDAP) or Trading Corporation of Pakistan (TCP). TDAP and TCP have their presence all over the country and everyone claiming the right of Basmati should get a certificate of verification from them, which has now even become the prerequisite in some countries that import Basmati.
The TMR’s standpoint sounds plausible as far as the concept of Basmati is concerned. It can also be said that growers also enjoy the priority rights, but again at the end of the day, the product would be monopolised and there would be no end to this dogfight. There would be cartels and monopolies and then Competition Commission would be stepping in and so on.
Furthermore, as Pakistan is a responsible member of WTO and TRIPS in this case, all the matters related to disputes are brought in the WTO by a country and not by any association. So, later on problems coming out of the claim of Basmati as GI from any other country, like India, can easily be pursued by the country itself in WTO.