April 19: According to Kumaran and Sagar, Patent Attorneys, who are advisors to the Tea Board, India, and the Darjeeling Tea Industry, to be entitled to protection as geographical indication within the meaning of TRIPS, "Darjeeling" ought to fulfil the following conditions.(i) that it identifies tea; ii) that the area in which tea originates is a clearly ascertainable area; iii) that a given quality, reputation or characteristic of the product is essentially attributable to its geographical origin.
From the information available, it appears that "Darjeeling" in combination with a logo has been registered as a certification mark in Austria, France, Germany, Italy, Portugal, Spain, Switzerland, Former Yugoslavia and the UK. It is, however, noteworthy that Darjeeling, per se, has not been registered anywhere in the world. Even in India, it appears that a certification mark application for the Darjeeling logo is pending. The packaging and advertisement of the Darjeeling tea focuses on the Darjeeling logo.In other words, no effort appears to have been made to emphasise the singularity, exclusiveness and distinctiveness of "Darjeeling" as a geographical indication identifying tea originating in the geographical area concerned. In this context, it would be useful to quote the following observations of the Court of Appeal in the Elderflower Champagne case:
"The first plaintiff's reputation and goodwill in the description Champagne derives not only from the quality of their wine and its glamorous association but also from the very singularity and exclusiveness of the description, the absence of qualifying epithets an imitative description. Any product which is not Champagne but is allowed to describe itself as such must, inevitably, in my view, erode the singularity and exclusiveness of the description Champagne and so cause the first plaintiffs damage of an insidious but serious kind."
In the absence of any independent goodwill and reputation in the originality and exclusiveness of Darjeeling, without anyqualifying logo, it would appear that the description entitled to a claim of geographical indication would be Darjeeling in combination with the logo. In my opinion, it would be necessary to create an independent brand equity in the term Darjeeling alone so that the qualifying impact imparted by the logo is gradually eliminated. It should be easy to achieve this since Darjeeling is a proper geographical name of a region as distinguished from traditional non-geographical names which require a greater degree of public awareness and promotional effect to invest than with a region - specific reputation and goodwill.
Assuming that the term Darjeeling, per se, has acquired a distinct reputation for tea grown in the region identified by it, it follows that the physical boundaries of the area drawn up and submitted in support of the certification mark registrations for the Darjeeling logo would meet the requirement of a clearly ascertainable geographical area.
The next requirement relates to the conditionspertaining to the product and the persons entitled to use the geographical indication Darjeeling. As regards the conditions relating to "Darjeeling" tea, it is necessary to define its unique characteristics or quality and further establish that such characteristics are due to the geographical origin. Or, in the alternative, it may be necessary that consumers, world-wide, associate with Darjeeling as a geographical origin a certain idea of quality and expect tea grown in it to fulfil the recognised quality requirements for such tea from this source.
As regards the conditions relating to persons entitled to use the geographical indication, it would be useful to extract the following observations from the Sherry case:-Blending is a highly skilled process essential to the whisky industry, and the sales of single whiskies are minimal. It is to be noticed that, in the sherry case, nearly all the sherry was imported in bulk into England and bottled in England and no distinction was drawn between shippers andproducers, and sherry itself is a wine which has been blended. In the American case of California Fruit Canners' Association, V Mayer, 104 Federal Report 82, mentioned in the judgement of Dankwerts J (as he then was) in the Champagne case, it was the canning companies which successfully sued and not the growers of the fruit. Nor do I think the present case falls outside the principle in the Bollinger case because blenders of Scotch Whisky may be found in England. Blenders who only blend whiskies distilled in Scotland with other whiskies distilled in Scotland are entitled to use the description "Scotch Whisky" whenever the actual blending takes place.
Based upon the above principles, it may be possible to define the class of persons entitled to use the description "Darjeeling" to include:
(i) Producers/growers/planters located in the defined geographical area;(ii) Packers/processors of Darjeeling tea who may be located outside the defined geographical area; (iii) Wholesalers/exporters/importers ofDarjeeling tea within and outside India.'
It is further stated that Darjeeling may be protected as a geographical indication of tea originating in the defined region under that name provided an appropriate framework for its protection includes the following elements:
Promotion and publicity of Darjeeling exclusively and without any accompanying logo so as to emphasise its singularity and uniqueness as a geographical indication. Definition of characteristics or quality of Darjeeling tea. Research into the existing body of published material so as to establish the region-specific good will and reputation in the description Darjeeling tea. Establishment of a separate fund for promotion and protection of Darjeeling in India and the international markets including the expenses that may be incurred on the aforesaid steps. Appointment of an international trade mark watch agency to function as a watch-dog for any conflicting trade marks. Registration of Darjeeling as acertification trade mark in the jurisdiction where such protection is available. Enforcement of your rights against any attempted registration and/or unauthorised acts of unfair competition.The moot question is, does the ailing Darjeeling Tea Industry have adequate funds to take on this Herculean task? There is no doubt that biopiracy has to stop. To be able to effectively combat and protect the fair name of Darjeeling tea, government help is necessary, nay, vital. In the years to come, there will be innumerable pressures on the government funds as well. Basmati is only the beginning.
A UK Company has filed for a patent on the entire tea manufacturing process, beginning from plucking of tea leaves to its final packing. Nestle has already obtained a European patent on Vegetable pulao.
In India, 7000 plants are used for medicinal properties and there are 326 species of wild crop varieties. Already 82 patents have been drawn on various insecticidal and medicinal properties of neem; 32patents on tamarind; 11 on turmeric and several others. Many other Indian crops, like Alfonso mangoes, will queue up for geographical protection. The third world countries, which cover area several times as large as developed ones, need geographicals protection most of all.
Prof. Yako Murofishi, Chairman of the Japan Institute for Food Distribution Studies, had developed the `buffet' to save time and space in large gatherings. This `invention' was tried during the Tokyo Olympics and has since become a global phenomenon. Prof. Murofishi would have been a rich man, today, had he patented his invention! The fact is that the world is fast heading towards a paradigm where food supplies and other natural wealth of the majority of nations will be patented by a few rich.
The threat of biological takeovers is real. The Darjeeling tea producers will have to move fast with the help of the government, scientists, legal advisers, exporters and importers so that the connoisseurs of tea continue to enjoy the `real'Darjeeling tea. Let Darjeeling show the ways. Before long, teas from Assam, the Nilgiris and, in fact, from all Indian growing regions will have to be patented to protect them from piracy.
According to a recent report, an African country is re-christening one of its tea growing districts as Darjeeling - the extent some people will go to! All Indian teas are special and the world eyes them with greed.
(The author is the chairman and managing director of Paramount Tea Marketing Pvt Ltd)y
Copyright © 1998 Indian Express Newspapers (Bombay) Ltd.
