- Achyuth Rao N
Konkan India’s Famous Alphonso Mangoes Get a Geographical Indication Tag
The Geographical Indications Registry, Chennai, on Wednesday, October 3rd, 2018, issued a Certificate of Registration for “Alphonso”, in respect of Horticulture (mangoes) falling under class 31. The Geographical Indication (“GI”) for Alphonso has been limited to the Konkan region of Maharashtra and comprises of five districts in the Konkan area, namely, (i) Palghar, (ii) Thane (including Greater Mumbai and Mumbai Suburban), (iii) Raigad, (iv) Ratnagiri and (v) Sindhudurg.
The application to register “Alphonso Mango” as a GI was originally filed by Dr. Balasaheb Sawant Konkan Krishi Vidyapeeth, an agricultural university in the Konkan region. Subsequently, this application was merged with two other applications for Ratnagiri Alphonso Mango and Devgad Alphonso Mango, and the nomenclature of the merged GI registration was revised to “Alphonso”.
With this, the number of registered GIs in India (since the first GI registration for Darjeeling Tea in 2004), now stand at three hundred and twenty-six (326) as of October 2018.
In addition to achieving the objectives of protection, promotion and enforcement of GIs as enumerated in the Geographical Indications of Goods (Registration and Protection) Act, 1999, (“GI Act”) what needs to be seen now is the implication of this GI certification on the marketability and supply of Alphonso mangoes in the domestic and international market.
Even though the GI registration for Alphonso covers around 1,25,000 mango growers in the Konkan region, the owners of the GI registration (being societies representing Alphonso Mango growers in each of the five aforementioned districts) are concerned with the generic term “Alphonso” covering mango varieties of all the five districts and are of the view that the applications for the Ratnagiri Alphonso Mango and Devgad Alphonso Mango should not have been clubbed to one common application that covers all five districts. They believe that unless Alphonso mangoes from each district are not recognised individually, farmers from these areas will not be able to reap the benefits that they should be entitled to, based on the region-specific reputations of the Alphonso mangoes. If the mango growers from each district can demonstrate that the type of Alphonso mangoes grown in their region has a reputation/characteristic/quality that is unique to that geographical location, there is nothing in law to prevent them from applying for individual protection of such areas cultivating these different varieties of Alphonso mangoes that would fetch the local farmers premium rates for the same.
Further, in the domestic market, this decision is also coming under scrutiny for precluding mango growers in regions other than the Konkan region, namely, neighbouring states like Gujarat, Karnataka and parts of Pune, from claiming rights overthe varieties of Alphonso mangoes growing in these regions. It is pertinent to note here that limiting the geographic indication of Alphonso mangoes to the Konkan region will not only disrupt theexisting export income for mango growers outside the Konkan region, but will also prevent them from promoting their mangoes under the Alphonso tag.
This issue was dealt with by the GI Registry in the Basmati Rice case,which opened the Pandora ’s Box of public policy v. law. Basmati Ricewas granted GI certification in 2016, in respect of varieties grown in seven northern Statesof India.Consequently, the State of Madhya Pradesh (a State in Central India) also applied for GI protection for Basmati Rice grown in Madhya Pradesh. This move was received with major backlash from Agricultural and Processed Food Products Export Development Authority (APEDA), the registrant of Basmati Rice, who was concerned that such inclusion would dilute the exclusivity of Basmati Rice and thereby drive down prices. Notwithstanding market sensibilities, inclusion of Madhya Pradesh as a GI for Basmati Rice, might have put India directly in contravention with its obligations under the Trade Related Aspect of Intellectual Property Rights (TRIPS) Agreement. This is because under the TRIPS Agreement, a GI is defined as an identification of goods based on any intrinsic characteristic, quality or reputation of the goods, that is essentially attributable to its geographical location. In the case of Basmati Rice, APEDA’s main contention was that Madhya Pradesh neither has the heritage/history northe suitable climatic conditions needed for basmati rice cultivation. Moreover, people do not associate Basmati Rice as something that is unique to Madhya Pradesh. The GI Registry vide order dated March 15, 2018, rejected Madhya Pradesh’s plea, citing insufficiency of evidence, that was needed to satisfy the fundamental requirement of “Popular Public Perception” of Basmati cultivation in Madhya Pradesh. This decision, although will not prevent Madhya Pradesh from growing rice, but will restrict it from naming rice grown in the State as “Basmati”. In light of this, it will be interesting to see if states like Gujarat and Karnataka, where Alphonso farming is prevalent, will fight it out and claim protection of Alphonso mangoes as a GI certification for themselves.
As regards the protection available to Alphonso mangoes at the international level, TRIPS mandates two levels of protection under Article 22 and Article 23. Article 22 sets out a minimum standard of protection applicableto all types of GI, wherein a Member State is required to prevent acts of unauthorised use and unfair competition, which leads the public to believe, that the good in question has originated in a geographical area other than the true place of origin. This is the minimum protection that all Member States are obligated to provide to GI holders in their national laws. Therefore, under Article 22, a producer not belonging to the geographical region indicated by a GI, can claim the benefit of a GI certification, as long asthey have honestly indicated the true origin of a product, on the label/packaging. For example, the label for the very popular mango drink, Slice, currently indicates the source of the Alphonso mangoes, used in the production of the drink, as “Ratnagiri Alphonso mangoes”. This will be deemed as correct usage of the Alphonso GI certification under Article 22. Whereas, Article 23 offers an “extension”, i.e. a higher level of protection for GI designating only wines and spirits. UnderArticle 23, Member States are required to prevent use of a GI identifying wines and spirits, not originating in the place indicated by the GI in question, even where the true origin of the goods is indicated on the label/packaging.
The GI Act of India sets out the minimum standard of protection mandated by Article 22, under the principle of passing-off enshrined in Section 20(2) of the GI Act. However, it does not have a provision akin to Article 23 of the TRIPS, and instead provides discretion to the central government to decide which GIs should be accorded higher levels of protection. This ensures that the products given this higher level of protection, will be better marketed and bring in higher levels of revenue. Notably, this provision does nothing in the international market to prevent misuse of GIs (where the true origin of the GI has been indicated on the packaging/label) as other Member States are not obligated to comply with ensuring a higher level of protection to such GIs originating from India.
With all the road-blocks plaguing the domestic and international market, it remains to be seen how the story of the Alphonso mango will play out. Obtaining a GI certification for the Alphonso mango is just the first step in ensuring effective protection, growth and enforcement of this GI, against competitors and infringers, who have wrongfully been free riding on the reputation and goodwill of the Alphonso mango. However, a balance must be maintained, in order to not defeat the purpose of a GI certification. The standard of care required to uphold the principles of public policy, must never exceed the interests of the vested parties. This can only be achieved if the registrants of the Alphonso GI, stay proactive, undertake awareness efforts and further the cause of the farmers that have been instrumental in achieving this GI certification for the Konkan region.