After Basmati rice, turmeric and Neem, it is the turn of Khadi to face “bio-piracy”. this time, a German company has registered it as a trademark in the EU. India, once again, has to gird itself up
By Rajendran Nair Karakulam
Another case of Intellectual Pro-perty Rights (IPR) infringement has surfaced. This time, it is khadi, a product synonymous with Mahatma Gandhi’s non-cooperation movement. In a shocking development, a German company named Khadi Naturprodukte, which sells products such as shampoos, soaps and oils made from natural ingredients, has registered “Khadi” as a trademark in the Office of Harmonization of Internal Markets, which is responsible for trademark and design registration in the European Union.
This development is surprising at a time when the khadi movement is sought to be revived by Prime Minister Narendra Modi so that the poor, who are dependent on this cottage industry, can benefit. In his first radio address, Mann ki Baat, Modi initiated a campaign to encourage the purchase and promotion of khadi. One month later, on the same radio show, he said that khadi sales had increased by a staggering 125 percent.
Meanwhile, Khadi and Village Industries Commission (KVIC) has also been urged to create and market Brand Khadi to attract buyers, especially among the youth. The first step in this direction would be the registration of this brand as an international trademark. BH Anil Kumar, joint secretary in the Ministry of Micro, Small and Medium Enterprises (MSME), says: “A trademark would be a proof of authenticity and provide legal protection too.”
But this may not be as simple as it sounds. For a brand to be registered as an international trademark under the World Intellectual Property Organization’s Madrid Protocol, it is necessary that it is not registered elsewhere. But with the Germans beating India to it, there is a question mark over this Indian product.
The most striking feature of the IPR infrin-gement is that the Ger-man products are similar to KVIC’s, except for fabrics. They are even packaged and marketed in an identical design. Though the German company is not selling fabrics, it has expressed its intention to add more products to its online shop. But KVIC is not going to take this lying down, as it has sought cancellation of the trademark held by the German company.
This is not the first time that India’s traditional knowledge or an indigenous brand has been commercially exploited and appropriated using intellectual property systems. It has been a victim of bio-piracy before and has successfully claimed its IPR at various international fora.
In the year 2005, the patent granted to a US company for methods of controlling fungal infections in plants using a composition that included extracts from the neem tree, was successfully opposed, on the basis that the method protected by the patent had long been known in Indian traditional medicine. Earlier, in 2001, a patent application on certain hybrids of basmati rice in the US was invalidated on the intervention of the Indian government.
While the protection granted to the Ger-man company is subject to cancellation, it may prove to be difficult unlike patent cases, where it is sufficient to show that the methods protected were part of traditional knowledge of India. Prof Shamnad Basheer, an expert on IPR laws, believes that India will have to prove that KVIC’s products have been selling in the European market for a longer time than the German products and that the consumers associate the brand with KVIC.
While India has entered an international legal battle to protect its traditional and cultural identity, all is not well within the country. The 37 trademarks, including “Khadi”, “Khadi Garmodyog” and “Khadi Bharat”, held by KVIC in India, have not been renewed within the prescribed time limit and therefore, do not exist at present. Also, eight other entities continue to have the registration in their names, of which seven are held by private individuals and one is registered under the name of Rajasthan Khadi and Village Industries Board.
With the re-emergence of a khadi trend in India, it is essential for KVIC to ensure that its existing trademarks in India are renewed and that “Khadi” is registered as an international trademark. Otherwise, traders within the country and abroad would appropriate it.
Khadi yarn being woven into fabric in a handloom unit
Sadly, there seems to be a lack of urgency in dealing with matters relating to intellectual property. The government must start protecting brands and traditional knowledge unique to India so that it isn’t exploited commercially by international companies. In a major initiative, India’s Traditional Knowledge Digital Library, a database containing 34 million pages of formatted information on certain medicinal formulations from across the country, has succeeded in bringing about cancellation or withdrawal of 36 applications in Europe alone.
In times of globalization and the World Trade Organization, international instruments such as the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agree-ment are legitimizing bio-piracy and internationalizing indigenous ideas, marks, brands and designs. India, along with other developing countries, is fighting for an amendment of such rules which go against their interests.
The sooner it girds itself, the more are the chances that our cultural heritage will be protected.
Patent predators, beware!
“PONNI” RICE, 2010
In 2010, a Malaysian High Court ruled that a local firm, Faiza Sdn Bhd, should not use the label “Ponni” for its rice products. This was based on an application by the Indian Agricultural and Processed Food Products Export Development Authority (APEDA) and four others. The
judgment said “Ponni” rice was produced along the Cauvery river in Tamil Nadu and Karnataka and Faiza did not have the right to register it as its own trademark.
After a decade-long fight, India won a battle at the European Patent Office (EPO) against a patent granted on an anti-fungal product derived from neem. The patent was granted to the US Department of Agriculture and multinational WR Grace in 1995. India proved that neem was part of the traditional knowledge of Indian farmers and the scientific community for centuries. Vandana Shiva of the Research Foundation for Science, Technology and Ecology was then quoted as saying that this was a major victory for India as the US company had tried to enlarge the scope to include all neem-end products. Incidentally, neem derivatives have been used traditionally to make insect repellents, soaps, cosmetics, tooth cleansers, contraceptives, etc.
Basmati rice, 2001
India won a case against US rice firm, Rice Tec, which secured US patent on basmati rice lines and grain in 1997. APEDA had objected to it, as both India and Pakistan are known producers of basmati rice. The United States Patent and Trademark Offices finally ceded to APEDA’s views and restricted the patent to three rice strains.
TURMERIC POWDER, 1997
Six attempts by the University of Mississippi Medical Centre in 1995 to use of turmeric powder as a healing agent were rejected by the US Patent and Trademark Office after India challenged it, saying the technique was not new. The Council of Scientific and Industrial Research had, on October 28, 1996, challenged attempts by the US university to get the patent. Its director-general, RA Mashelkar, had said that this
success had sent out strong signals that if patent cases were fought with well-supported techno-legal methods, traditional knowledge could be protected.