A government organisation that has no representation from the rasogolla industry decided to claim regional ownership. This is completely illegal and is grounds for setting aside the registration.
The news that the Bengali ‘rasogolla’ has been granted the status of a geographical indication (GI) under the Geographical Indication of Goods (Registration and Protection) Act, 1999 has led to a flood of reporting on how West Bengal has won the rasogolla-GI race against Odisha, which also laid claim to being the original home of rasogulla.
Some of this coverage has been rather comical, because this registration is another example of how the Indian government and the GI Registry has fundamentally misunderstood and misapplied the GI registration.
Why did India enact the law?
The GI Act is often classified by mainstream media as a legislation aimed at protecting intellectual property. Technically that is an inaccurate description, because unlike copyright patent or trademark law, which are aimed at protecting creativity and brand names, legislation protecting GIs is aimed at protecting against misrepresentation of origin and consistency of quality of food, wine and spirits. Essentially a European concept, the concept of GIs was pushed into the Agreement on Trade Related Intellectual Property (TRIPS) regime by the EU as a way to protect its lucrative food and wine exports.
The basic premise of the European argument was that products like champagne or scotch are unique given their GI – the water, soil and climate of the Champagne region of France and Scotland are responsible for the unique taste of both scotch and champagne and hence there needs to be a law ensuring that only producers from those regions can represent their product as being from that region. A GI law therefore only protects the right of a group of producers to represent that their product is from the protected region and stop people from outside the region from representing their products as such. In return, the state demands that the association registering the GIs ensure some basic standards amongst their producers to protect state interests. The brand name or trademark is different from the GI and belongs to independent producers – for example, scotch is a GI registered in the name of the Scotch Whiskey Association (SWA), while Glenfiddich is a trademark owned by one of the distilleries that is a part of the SWA.
The European proposal at the WTO caused quite some friction with the Americans (and continues to be an irritant in EU-US trade talks) because businesses in the US would often brand their cheese and wines with European names – in many cases the American businesses were built by European immigrants. Parma cheese and champagne are some of the European GIs which are used by the Americans. In any event, the TRIPS Agreement requires all signatories to protect GIs but the language is quite flexible and did not actually require India to enact a new legislation.
Like the Americans, India could have argued that its Trade Mark Act was sufficient to protect community rights for a specified geographical region through the system of certification or collective trademarks. For whatever reason, the Indian government agreed to enact a new GI Act and create a whole new administrative framework to implement the law.
Illegalities in registering ‘Banglar rasogolla’ as a GI
The rasogolla is a spongy milk-based sweet that needs to be tasted to be understood – words don’t quite describe the taste. Although popularly identified with Bengal, rasogollas are made by chefs across the country. To claim a GI registration for a food like rasogollas, it is first necessary for a group of producers to get together and present a case on why their food product is unique to a particular region thus making it impossible to produce said food outside the geographical region.
In the case of the rasogolla GI, the application for registration was filed by the West Bengal State Food Processing and Horticulture Development Corporation Limited (WSFPHDCL). The statement of case filed by this government-controlled body does not explain how a government-run body, which is neither involved in the business of making rasogollas or representing producers of rasogollas, can seek to register a GI. Section 11 of the GI Act is clear that only an “association of persons or producers or any organisation or authority established by or under any law for the time being in force representing the interest of the producers of the concerned goods” can file an application for registering a GI.
In the examination report, the GI Registry points out this deficiency when it states, “The Government shall not be applicant and the applicant needs to be replaced as per Section 11…” In the very next objection, it seems to make a concession when it states, “The Consultative Group strongly felt that Association of Producers to be the Applicant and West Bengal State Council of Science & Technology to as act as a Facilitator”. It is not clear why this objection was couched in language that seemed to deliver the impression that it was obligatory and not mandatory.
In its reply to this examination report, the WSFPHDCL concedes that there are over 100,000 sweetmeat shops that produce 20,000,000 rasogollas daily and that the association of producers is the Paschim Banga Mistanna Byabsayee, but claims that this association of producers is incapable of “handling critical issues of GI Registration and rights conferred to the applicant”. Thus, a government organisation that has no representation from the rasogolla industry decided to step in. This is completely illegal and is grounds for setting aside the registration.
The GI Registry most likely allowed the registration to proceed in the name of this organisation despite raising a Section 11 objection because the GI Registry has already set several precedents by allowing a range of government organisations to register GIs despite not being representatives of the producers.
The second, bigger problem is that the application for registration does not demonstrate how or why the Bengali rasogolla is unique to the geographical region of Bengal and why other rasogollas made in other parts of the country do not taste the same as the Bengali rasogollas. For example, if the application had traced the uniqueness to the chaana or sugar that is grown only in Bengal, it may have had a chance to demonstrate geographical uniqueness. But then again, how would they have ensured uniformity in the recipe and materials used by the 100,000 sweet shops that manufacture rasogollas across West Bengal? As things stand now, if a rasogolla made in any other part of the country tastes the same as the rasogolla in Bengal, why should they be foreclosed from marketing their product as Banglar rasogolla?
The fallout of the registration of the Banglar rasogolla as a GI
Now that the GI Registry has granted the rasogolla GI to the WSFPHDCL, it means that anybody wanting to represent on the product packaging or signboard that their product is Banglar rasogolla (including the sweetshops in West Bengal) will need to seek permission from the corporation that has been granted the GI registration. Such permission can be given only if they comply with the recipe and manufacturing process laid down in the application submitted to the GI registry.
For the record, it appears that the recipe and process has been lifted from the website of K.C. Das and a book written by Haripada Bhowmick. If any sweetmeat shop from West Bengal does not comply with these conditions while selling its product as the Banglar rasogolla, the corporation holding the registration can initiate both civil and criminal litigation against such person.
As for producers of rasogollas located outside West Bengal, they can never be authorised to represent their product as Banglar rasogolla even if their product has been made by a Bengali and it tastes exactly the same as rasogollas made in West Bengal. The reason being that the GI registration has been granted only for the region of West Bengal.
This episode with rasogollas demonstrates the farcical implementation with India’s GIs and instead of studying and fixing these problem, the Department of Industrial Policy and Promotion is engaged in a frivolous social media campaign promoting GIs.
Prashant Reddy T. is a an assistant professor at NALSAR University of Law, Hyderabad.