We're pleased to bring you yet another guest post by L. Gopika Murthy. She brings us the news of a recent GI granted on the jasmine flower, Madurai Malli.
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| Image from here |
Madurai Malli, the jasmine flower known
for its fragrance and its distinctive petal colour, that
originates from the district of Madurai in Tamil Nadu has been granted the GI(Geographical Indication) tag by the Registrar of Geographical Indications on
January 11, 2013. This flower is
the first horticultural product from Tamil Nadu to have been granted a GI
status.
A GI tag indicates that a good has
originated or has been manufactured from a particular country or region or
locality. This tag is given for goods whose quality, reputation or any other
characteristic is attributable to this place of origin. GI has been recognized
as intellectual property in international instruments such as the Paris
Convention for the Protection of Industrial Property as well as by the TRIPS
Agreement of the WTO. India has also legislated on this issue in the form of The
Geographical Indications of Goods (Registration & Protection) Act, 1999
(“the GI Act”).[1]
Madurai Malli became eligible for
registration as a GI as it fits the definition of a geographical indication
under Section 2(e) of the GI Act. The flower which is cultivated in various
parts of Madurai is known for its heavy fragrance as well as its thick petals
which change colour from greenish white in the morning to milky white in the
afternoon to creamy white with a slight silvery shade by evening. The heavy fragrance
of the flower is a result of the accumulation of alkaloids such as ‘jamone’ and ‘alpha terpineol’. These alkaloids accumulate owing to the
topography of the Madurai region where the flowers are harvested. Moreover, the
colour of the flowers as well as its fragrance last for two days. This longer
shelf life of Madurai Malli, which is due to its thicker petals as well as its
longer petiole, makes it attractive for the consumers, especially exporters and
flower weavers.
Under Sec. 11 of the GI Act, any association
of persons or producers or any organization or authority established by or
under any law that represents the interest of the producers may apply for
registration as a geographical indication. In this case, the application for
the GI was jointly filed by the Madurai Malli Farmers’ Association, Kurinji Vattara
Kalanjiam and the DHAN Foundation, Madurai. The remaining steps for
registration[2]
were completed and the GI tag has now been granted to Madurai Malli.
A common complaint among the
cultivators of Madurai Malli is that it is usually adulterated while exported
to other countries. This results in the Madurai Malli losing the fragrance
which it is most known for and consequently, its demand falls. Now that Madurai
Malli has been given a GI tag, there are civil and criminal remedies available
for the cultivators under the GI Act if other jasmine flowers are sold as
Madurai Malli.
Under Section 67 of the GI Act, the
civil remedies include injunctions (ex
parte or any other interlocutory order) as well as damages or an account of
profits, at the option of the plaintiff. This may be coupled with an order for
the delivery-up of the infringing labels and indications for their destruction
or erasure. In 2006, the Delhi High Court in the case of the Scotch Whisky Association v. Golden Bottling Limited,[3] granted the plaintiff a permanent
injunction as well as damages of Rs. 5,00,000/- under Sec. 67 of the GI Act. It
also asked the defendant to bear the expenses of the litigation which was Rs. 3,10,000/-.
In this case, Scotch Whisky had a GI tag and the plaintiffs contended that the
defendants were infringing on their GI tag by selling its whisky under the name
‘Red Scot’. The Court held that the plaintiffs intellectual property rights had
been infringed upon and granted them relief under the GI Act.
Sections 39 and 40 of the GI Act, state
that the penalty for applying false geographical indications and for selling
goods to which false geographical indications are applied is imprisonment which
may be between six months to three years and fine which may be between fifty
thousand to two lakh rupees. This remedy is also now available to all
cultivators of Madurai Malli as well, owing to its registered GI status.
Moreover, there are other remedies
available to the rights holder under the Intellectual Property Rights (Imported
Goods) Enforcement Rules, 2007.[4]
These rules recognize geographical indication as intellectual property and the
GI Act as intellectual property laws. Under these rules, the rights holder can
record its registered GI with the Customs authorities. Once the procedure under
these guidelines are complied, the Customs authorities have the power to seize
imported goods at the border, if there is prima facie evidence or reasonable
grounds to suspect that they are infringing on the geographical indication of
the rights holder, without obtaining any orders from the Court. While it cannot
be stated with certainty that this is an useful remedy for the cultivators of Madurai
Malli as the problem appears to be with the export of other jasmine flowers
under the name of Madurai Malli rather than its import, this is without doubt a
convenient remedy for other GI rights holders in general.
[1]
The text of the act can be accessed at: http://ipindia.nic.in/ipr/gi/gi_act.pdf
[2]
The step by step process for registration of a GI can be found here:
http://ipindia.nic.in/girindia/
[3]Scotch
Whisky Association v. Golden Bottling Limited , 2006 (32) PTC 656 Del.
[4]
The text can be found at: http://www.wipo.int/wipolex/en/text.jsp?file_id=201652
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