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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