A judgement by the Court of Justice of the European Union upholding the European Union (EU) registration of “Abresham Super Basmati Selaa Grade One World’s Best Rice” under the Union’s provisions for non-registered trademark in 2017 has led to claims by Pakistan trade that its geographical indication (GI) rights have been upheld.

However, the claims are seen as a mere “pipe dream” by an expert in Basmati cultivation and its GI rights, since the trademark was obtained before the Indian Patent Office awarded the GI tag for Basmati rice growing in specific regions of the country.

In a ruling earlier this month, the Luxembourg-based Court of Justice upheld the registration for the trademark for the non-registered product on the ground that the party opposing the process did not sufficiently explain how the distinctiveness of the word “Basmati” would be affected.

India likely to get exclusive rights to sell Basmati in EU

The Rice Exporters Association of Pakistan has reacted saying it had “successfully” worked against the Indian application of GI tag and exclusive marketing rights for its Basmati rice in the EU.

Trademark for rice products

The Court of Justice’s ruling came on an appeal filed against the European Union Intellectual Property Office (EUIPO) judgement by UK-based Indo European Food Ltd, a wholly-owned subsidiary of India’s Kohinoor Foods Ltd that markets Basmati rice under three brands.

On October 13, 2017, the UK firm had opposed the application of Venice-based Hamid Ahmad Chakari being published by the EU trade markets in its bulletin, a process that recognises that Chakari’s request had been accepted.

Chakari, who buys rice from Pakistan and distributes in the EU, had obtained the non-registered trademark for flour of rice, rice-based snack food, rice cakes, rice pulp for culinary purposes, extruded food products made of rice, rice meal for forage.

Indo European Food Ltd argued that it was entitled to rely upon the goodwill associated with the name “Basmati” that had a reputation amongst a significant section in the UK, which recognised it as a particular class of rice.

Lack of evidence

It said the word element “Abresham Super Basmati Selaa Grade One World’s Best Rice” clearly tried to represent that the product was “Basmati” rice. In case, the rice was of a type other than “Basmati”, then the goods would be falsely described, leading to the likelihood of misrepresentation.

It will result in damage to the goodwill that “Basmati” rice commanded and also constitute “food fraud” in the UK, where the damage could be substantial. Indo European Ltd argument was rejected on April 5, 2019, on the grounds that it failed to submit sufficient evidence to prove that it has suffered or is likely to suffer damage as a result of the registration of the trademark.

The third board of appeal of EUIPO, rejecting the UK firm’s appeal, said the registering of the trademark “could not cause a direct loss of sales” to Indo European Ltd as the contested goods were other than rice, whereas the applicant sold only rice.

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“Likewise, there was no argument to explain how use of the mark applied for could affect the distinctiveness of the name ‘basmati’”, the EUIPO board of appeal said.

The Court of Justice, however, agreed that even if the goodwill attached to the name “Basmati” related only to fragrant, long grain rice as a variety or class of goods, a non-negligible part of the public might believe that the goods such as flour of rice, rice-based snack food, rice pulp or rice meal for forage, labelled “Abresham Super Basmati Selaa Grade One World’s Best Rice”, could in some way be associated with Basmati rice.

But the appeal was rejected since Indo European Ltd “failed to demonstrate” that the trademark would result in “Basmati” name being misrepresented.

Wrong impression

According to S Chandrasekaran, who has authored the book, BasmatiRice: The Natural History Geographical Indication ”, Pakistan has got a wrong impression that the Court of Justice had indirectly recognised its Super Basmati variety.

The case revolved around a non-registered product in 2017, a period before India got GI tag for its Basmati rice. Once the Indian Patent Office gave the GI tag for its Basmati rice, it protects the fragrant rice across the world for its exclusivity.

The Indian registration supersedes even non-registered claims and it is an internationally settled law, the expert said.

The domestic protection that Basmati rice has got in India provides New Delhi the legal means to challenge any registered or non-registered trademark post-2017, Chandrasekaran said.

The issue assumes significance in view of India applying for an exclusive GI tag for its Basmati rice last year. Though Pakistan has opposed providing the GI tag that could offer India exclusive marketing rights of the long grain rice, its chances are seen poor since it has not got its domestic act together on the GI front properly.