Friday, February 11, 2011

Darjeeling Tea: Facing Legal Tribulations

The Tea Board of India, a statutory body was set up by the Union Ministry of Trade and Commerce under the Tea Act, 1953. The Tea Board of India has taken initiative to file application for registration of Darjeeling tea as agricultural product in class 30 under Geographical Indications of Goods (Registration & Protection) Act, 1999 and rules 2002. The said board has filed two applications as application No.1 for word “Darjeeling tea” and application No. 2 for logo (here) on 27.10.2003.The Tea Board constituted with an objective of promoting and protecting Tea Export claimed as representative of growers. Based upon such representation, Darjeeling tea received Geographical Indication(GI) status in 2004 and became first Indian product to received GI Tag. It is not very clear to me, does the “Darjeeling Tea” Word & Logo can be registered as GI and trademark simultaneously without any overlapping in Acts.

Issues: It was reported (here) that, The Tea Boards control of the GI tag which makes small farmers unhappy because they are not included in the list of authorized users. At present, small farmers outside the 87 tea estates need to sell their produce to any of the listed tea plantations, which then sell it in the open market as Darjeeling tea. The tea market has enough space for both big plantations and small farmers. The interest of the large community of small farmers needs to protect under the said registered GI.

Legal Practices Involves: A petition was filed by Shri Rajeev Saraf, New Delhi, on various grounds i.e. ingenuity of the ownership according the act and rules, to the office of the Controller General of Patents, Designs & Trade Marks (CGPTMA). CGPTMA has admitted the petition for correction or removal of the respective GI registration. The petition has been sent to the Intellectual Property Office at Chennai where the GI Registry is located for resolving the dispute. The GI Registry, India through its letter dated 27.04.2009 has advised the Proprietor i.e. Tea Board, Kolkata to move for rectification of their GI.

Recently, the Tea Board applied for Protected Geographical Indication (PGI) with European Council. The objections filed by Shri Rajeev Saraf to the Tea board, India application for registration of PGI with EC has been admitted and EC has directed as under:-

“invites the interested party the Tea Board, Kolkotta, India and the Indian objector to engage in appropriate consultations for a period of 6 months from the date of notification and the Tea Board has to inform the commission of the results of these consultations preferably using the form in Annex IV of Commission Regulation (EC) No. 1898/2006 within one after termination of six months.

The objective to file objections was to highlight the issues that the GI's cannot be owned by the Government authorities and the principal stakeholders should be the true owners. It is now for the Tea Board to act earnestly

Some points from Act:

Under Section 2 (k) of the Act, the term ‘Producer’ defines as the actual producers of the goods and includes the person who processes and packages the same.

Under Section 11 of the Act, defines the applicant eligible for applying for registration of any GI as follows; Any association of persons or producers or any organization or authority established by or under any law for the time being in force representing the interest of the producers of the concerned goods, who are desirous of registering a geographical indication in relation to such goods shall apply in writing to the Registrar in such form and in such manner and accompanied by such fees as may be prescribed for the registration of the geographical indication”.

Interpretation: All the growers of Darjeeling Tea are not the members of ‘Tea Board’ and nor the same has been constituted with an objective to protect the interests of Tea growers, The Tea Board constituted with an objective of promoting and protecting Tea Export and thus the applicant has to be an authority in law competent to do so. Pursuant to the objectives of this GI Act 1999 and not earlier. Above said section, doesn’t enable the Government agencies to apply for any GI registration because in the Government organisation the producer has not role to play and nor they are the constituent of the same.

The applicant for GI registration should be an association of persons or producers or any organizations or authority representing the interest of the producers of the concerned goods. In consequence all the existing bonafide growers are made unauthorized users, as the GI Laws gives protection to only registered authorised users. In the case of Darjeeling tea, the Tea Board mentions no authorised users.

Peoples Views:

Mr.Vinay Jain, advocate, Delhi High Court, said that “as the purpose of GI Acts is to protect producers and their rights at the grassroots level, the applicant must represent the entire grower and farmer community of Darjeeling Tea. Tea Board of India does not fully represent all the producers, specifically small farmers, linked with the production of Darjeeling tea and nor is it a body specifically constituted to protect the interest of growers”.

Mr.T.C.James, Director, IPR Division, DIPP, Ministry of Commerce and Industry says that “everyone loses if Darjeeling tea loses its GI status, given that the legal protection it provides helps boost exports”. “Tea Board must be given credit for taking the initiative to register it as the first Indian good under the GI Act”. "If, however, there are those who believe it was wrongly registered there is a legal mechanism to address their grievances,”

Dr.S. K. Soam, Principal Scientist & Professor, National Academy of Agricultural Research Management (NAARM says that “Ownership of Tea Board should never be questioned within the meaning of law. Owner (proprietor) and Authorised user are different concept. All authorized users are not owners, while owner is always authorized user. Whether any producer has applied for authorized user through owner i.e. Tea Board? If not, it is not fault of owner, whether Tea Board has denied to any applicant for authorized user? Another question is representing interest of producers, in principle, all public boards are constituted for that only. To what extent they contributed towards this purpose, it may interest to know. For example, labourers in Darjeeling tea gardens are also producers. Did they get share of profit resulted after GI protection, in terms of higher wages compare to other agricultural labourers in the region? Did Tea Board developed community infrastructure or networking like Self Help Groups in the region? If not, then owner of the GI failed in the duty of true representative of the producers but it does not dilute the claim of ownership over Darjeeling tea”.

I hope that issues will be resolve very soon. What will be the future status of Darjeeling tea? This will decided by proceedings in coming days.

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