Abstract
This article is a contribution to the debate on geographical indication (GI) protection for basmati rice, stressing its relevance to Nepal. After providing an overview of Nepal’s intellectual property regime, this article gives a detailed account of justifications for Nepal to oppose India’s European Union GI registration of basmati rice. The analysis, which highlights the connection between basmati rice and Nepalese society, focuses on the social and cultural values of basmati rice in local communities. The basmati rice controversy provides an opportunity for Nepal to brand its local product in order to penetrate both national and international markets. The GI system may be an auxiliary agent in achieving these goals.
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1 Introduction
In December 2020, Nepal, the first of the least developed countries (LDCs) to join the World Trade Organization (WTO), made headlines for opposing India’s European Union (EU) geographical indication (GI) registration of basmati rice.Footnote 1 This news came as a surprise for many, because this Himalayan country has not been an enthusiast in protecting and promoting intellectual property rights (IPRs) at the national level. However, things have changed since the inclusion of intellectual property (IP) in the right-to-property provision under the fundamental rights chapter of the 2015 Constitution of Nepal.Footnote 2 Although the constitutional clause on IP is yet to be tested before the Nepalese courts, this has given a positive message concerning the state’s commitment to developing a balanced IP system that will foster innovation and creativity. To that end the national IP policy of 2017 further provided a pathway for IP reforms in Nepal.Footnote 3
Despite initial momentum, legislative reforms have not been hastened in the way that one would like. Currently, Nepal is moving towards graduating out of LDC status by 2026.Footnote 4 Therefore, developing an IP regime that would increase exports is essential.Footnote 5 In this context, products that have a specific geographical origin and possess qualities, reputation or characteristics that are essentially attributable to that origin have become relevant to Nepal.Footnote 6 By the same token, GIs have become an important tool in promoting local Nepalese products in both national and international markets.
At the international level, the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) provides global recognition to GI, by defining and establishing minimum standards of protection.Footnote 7 TRIPS defines GI as “[i]ndications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.”Footnote 8 TRIPS prohibits misleading use of GIs which falsely describe a good as originating in a geographical area other than the true place of origin.Footnote 9 TRIPS provides freedom to WTO members to opt for either a trademark or a sui generis form of GI protection.Footnote 10 This means that GIs are protected at the national level through trademarks or specific GI provisions, although few have opted for a sui generis form of GI protection. The discussion around developing the GI regime in Nepal is not new, but lacks motivation to concretize in the form of a legal document. When India filed a GI application for basmati rice in the EU, based on the geographical connection, quality and reputation of the product, demonstrating its origin in India, prompted Nepal to raise its voice against that.Footnote 11 Thus the opposition by Nepal to the EU registration of basmati rice by India has ignited a debate in Nepal about the need to protect and preserving local products that possess national identity and to improve the national IP system.
In that context, this article contributes to continuing debate and discussion regarding basmati rice from Nepal’s perspective. Much of the debate and academic writings on basmati rice are focused on India and Pakistan. Both countries have claimed geographical connections and reputations attributable to the origin of basmati rice. Over the years, Nepal has hardly participated in this debate, as most of the Nepalese literature on basmati rice is in the Nepali language, lacks documentation and is often lost in translation. Hence this article is a contribution to the debate, highlighting the relevance of basmati rice to Nepal. Its main objective is to participate in the basmati rice debate globally, showcasing unheard voices from Nepal.
To so do, this article is divided into three parts. The first part (Sect. 2) will introduce Nepal’s IP regime and GI protection, followed by the second part (Sect. 3), which will provide an overview of the origin of the basmati rice controversy. The third part (Sect. 4) will then analyze the reasons for Nepal’s opposition to India’s application for EU registration of basmati rice. In doing so, it will examine the relevance of basmati rice to Nepalese society and culture. The next part (Sect. 5) will assess the relevance of this debate in advancing legislative development in Nepal. The last part (Sect. 6) will briefly explore possible options for addressing South Asian GI disputes.
2 Nepal’s Intellectual Property Regime and Geographical Indication Protection
Since it joined the WTO in 2004, Nepal has enjoyed flexibility in implementation of WTO TRIPS rules. Article 66 of TRIPS sets a ten-year transitional period for LDCs to implement minimum IP rules into their national system. This transitional period is renewable, in recognition of LDCs’ “special needs and requirements”, “economic, financial and administrative constraints”, and “need for flexibility to create a viable technological base”.Footnote 12 The main objective of the LDCs’ transitional period is based on the idea that IPR protection cannot be effective as an incentive mechanism in the absence of a sound and viable technical base. This rationale is also embraced in the preamble and other provisions of TRIPS which emphasise the special needs of LDCs through maximum flexibility in domestic implementation of laws and regulations.Footnote 13 The transition period under TRIPS has been extended four times by the TRIPS Council.Footnote 14 On 29 June 2021 the Members agreed on a 13-year extension of the current transition period for LDCs, until 1 July 2034.Footnote 15 Thus Nepal is not required to implement minimum IP rules included in TRIPS until 1 July 2034.
The Patent, Design and Trademark Act and the 2002 Copyright Act are the two main laws governing IP in Nepal and were enacted before WTO Membership.Footnote 16 For a long period IP reforms in Nepal received little attention until recently, when the government has shown enthusiasm to initiate policy discussion. In 2017 Nepal introduced its first national IP policy, which aimed to achieve economic prosperity by preserving, using and protecting IP.Footnote 17 The main objectives of the national IP policy were: (i) to encourage protection, promotion and development of IP; (ii) to developed a balanced IP system; (iii) to create awareness about the social, economic and cultural aspects of IP; (iv) to encourage the commercialization of IP; and (iv) to strengthen legal, administrative and human resources to ensure protection and enforcement of IP.Footnote 18 To implement this vision Nepal drafted a new Industrial Property Bill, although this never gained momentum, despite a collective desire for change.
Nepal does not have a specific law on GIs. Under the current framework potential GIs are protected by trademark law. This is not because Nepal chose to adopt trademark protection for GI products as practised in the United States and other jurisdictions. For many years stakeholders have made efforts to engage in developing GI legislation to promote products such as Nepalese tea and coffee. The 2010 Nepal Trade Integration Strategy (the 2010 NTIS) emphasizes the need to build export supply capacity in agro-food by developing good agricultural practices and quality management systems.Footnote 19 To this end the 2010 NTIS identified the tea, lentils, cardamom and ginger sectors as those which could be supported by GIs.Footnote 20 Subsequent the 2016 NTIS also identified a lack of IP framework and noted that “limited use of existing (IP) protections by the Nepalese producers and exporters have negative impacts on product competitiveness”.Footnote 21 This underlined the need for GI legislation so that it can be a tool for the protection of Nepalese products in the international market.Footnote 22 Despite the reference thereto in the NTIS, no progress has been achieved in GI legislation.
When the Nepalese government introduced the first National IP policy in 2017 there were high hopes for developing a GI system, because that policy recommended GIs as a potential area for policy intervention. The draft Industrial Property Bill incorporated GI as collective and certification marks. That draft bill aimed to give GI legal recognition by acknowledging registration of GI.Footnote 23 However, the Act does not explain the scope of GI protection but instead indicates that GI-related rules will be developed through additional rules and directives.Footnote 24 Regrettably, the draft Industrial Property Bill did not gain momentum despite the initial draft in 2018. The government is currently preparing the 2022 NTIS, which is likely to feature GI as a way to increase Nepal’s export competitiveness.
The uncertainty of GI legislation has forced stakeholders to pursue different legal frameworks that could protect and promote local goods with a strong relationship to land and terroir. One example is Nepal’s Orthodox tea, a loose-leaf tea produced using traditional (orthodox) methods, which are discussed further below. Due to increasing demand for Nepal’s Orthodox tea, stakeholders lobbied for certification and collective marks as options to protect and promote local products such as tea and coffee.Footnote 25 Another reason for opting for trademark protection is the emergence of trademark practice in Nepal. The growth in trademark filings and the increasing number of disputes related to well-known trademarks have garnered attention.Footnote 26 In other words, there is more clarity in trademark practice and enforcement compared to other categories of IP in Nepal. For this reason many stakeholders view certification marks as a way to protect potential GI products in Nepal. To that end, the National Tea and Coffee Development Board introduced a directive for a certification trademark for Nepali Orthodox tea.Footnote 27 The recital to the directive states:
[The] tea industry in Nepal has developed substantially, reaching out not just at national level but also to the international tea market. To take it to yet another level, it has now [been] deemed necessary to introduce to global team consumers and entrepreneurs the business capacity of Nepal’s tea, its quality and production quantity. Also, considering the necessity of a certification trademark of orthodox green and other specialty teas produced in mid and high mountain regions of Nepal in terms of plantation, farming, production, and marketing, it is very much required to form and enforce a directive.Footnote 28
The objective of the Directive is to attract, promote and develop the international market for Nepali Orthodox tea and to facilitate a competitive market for producers, processors, exporters and tea entrepreneurs.Footnote 29 Orthodox tea is prepared by combining two fine-plucked tea leaves and one budFootnote 30 and is available in hilly districts in eastern Nepal covering around 12–15% of total tea production and produced at altitudes between 3,000 ft and 7,000 ft.Footnote 31 Orthodox tea has its own quality and uniqueness due to young bushes, which produce better quality leaves, thus making such tea easily distinguishable from other teas in the region.Footnote 32 It has also attracted demand on the international market, has been traded at tea fairs and has been exported to distributors in countries such as Australia, Austria, Denmark, France, Germany, Japan, Norway and the United Kingdom, as well as others.Footnote 33 Given its clear geographical origin and qualities, Orthodox tea would fulfil the criteria for GI protection.Footnote 34 The sad reality is that Orthodox tea is a registered trademark that does not offer a greater scope of protection than sui generis GI. This is just one example, and there are other products in Nepal which are still in search of a potential GI identity.Footnote 35
3 The Battle over Basmati Rice
Large-scale rice production and consumption make South Asia the home of rice.Footnote 36 South Asian countries have strongly agriculture-based economies, therefore rice is an important commodity in improving the economy and social development. Globalization and liberalism have further shaped national policy, induced foreign investments in agriculture and facilitated exports of local products globally.Footnote 37 In most South Asian countries rice production is dominant, although traditionally rice is not perceived as an economic commodity, and the cultural and social relationship that rice reflects in society is larger than life. Of course, the rise of agricultural trade and market liberalization of food products have promoted an increase in production, with different methods of cultivation.Footnote 38 The rise of the WTO makes possible significant market access for rice and ensures the most favoured national treatment on duties on imports of rice to all WTO Members.Footnote 39 To that end, TRIPS recognizes products that have a strong link between the place of origin and possess qualities or a reputation due to that origin through the framework of GI.
On 2 September 1997 basmati rice came into the limelight when a Texas-based company named RiceTec, Inc. obtained a patent on “basmati rice lines and grains” which related to novel rice lines and the method of breeding those lines.Footnote 40 The hybrid rice was marketed as American basmati under the trademark “Texmati”.Footnote 41 The broad patent claims for a specific rice plant, the seeds that germinate the patented rice plant, the grains produced by the patented plant and the methods of selecting plants for breeding grains of rice resulted in criticism and protests from India.Footnote 42 A campaign led by non-governmental organizations gathered momentum that resulted in people demonstrating against the patent in front of the US embassy.Footnote 43 As a result, in 2000 the Indian Agricultural and Processed Food Products Export Development Authority filed for a re-examination of the patents in the US Patent Office (USPTO), submitting strong evidence consisting, reportedly, of 50,000 pages of scientific evidence along with historical documents.Footnote 44 Following the re-examination, RiceTec agreed to withdraw some claims, so that only three claims relating to novel rice lines were maintained.Footnote 45 The RiceTec patent was subsequently terminated in 2005 due to failure to pay with maintenance fees.Footnote 46
Following the basmati rice controversy India remained vigilant and won several disputes involving the “basmati” trademark in the United Kingdom, Australia, France, Spain, Chile and elsewhere.Footnote 47 This global battle was supported through the Basmati Development Fund, which had been established by the All India Rice Exporters Association.Footnote 48 India learned a lesson from the basmati rice controversy,Footnote 49 which led to sui generis legislation on GI that came into effect on 15 September 2003. Ever since then India has been mindful of biopiracy and continues to be a voice for protection of traditional and indigenous products.Footnote 50 The success of India’s claim over basmati rice developed a narrative that rice traditionally belongs to India. International media and academic work further established that basmati rice comes from India and Pakistan. One leading Indian scholar wrote:
In [a] strict legal sense, “Basmati” is yet to become a GI. Since the geographical area pertaining to “Basmati” belongs partially to India and partially to Pakistan, both countries have to arrive at a system of joint protection of this indication. However, owing to a number of political-economic reasons surrounding this commercially significant indication, in particular, and political sensitivities and of “Basmati” also indicates that [the] political boundary of a nation is not relevant for determining the geographical area pertaining to a GI.Footnote 51
As captured in the preceding paragraph, basmati rice is a variant belonging partially to India and partially Pakistan. More than a decade ago India and Pakistan agreed to file a joint application for GI registration in the EU, but the political rift between the two countries has made such an application impossible.Footnote 52 Therefore India first filed a domestic GI registration for basmati rice and later filed an EU application therefor.Footnote 53 It is not surprising that Pakistan was the first country to oppose India’s EU GI application for basmati rice and the subsequent granting of a GI tag for basmati rice to make a strong case against the Indian application in the EU.Footnote 54 Unfortunately, in this discourse, the Nepalese position on basmati rice has been overlooked.
There are many reasons why the Nepalese narrative on basmati rice has never received attention in the international media. Firstly, when the Texmati dispute came to light Nepal was not a member of the WTO, Nepal only became a member of that organization in 2003. At that time, Nepal was undergoing conflict and political instability, so Nepal’s priority was maintaining the rule of law and human rights.Footnote 55 Secondly, even after joining the WTO Nepal, being an LDC, enjoyed a transition period and was therefore under no obligation to meet the minimum obligations that TRIPS imposes. As a result, Nepal does not have regulations protecting local and indigenous products. Thirdly, historical documents on Nepalese basmati rice and other literature on basmati rice have never been collated and are written in the Nepali language. Hence, lack of translation into English can be considered as one reason, if not the sole reason, for this Nepalese narrative going unnoticed.
Given this development, Nepal’s opposition to India’s EU GI application for basmati reflects Nepal’s intention to develop a legal framework to protect and promote local products, as captured in the 2017 national IP policy. Increasing tension between India and Nepal may also have provided additional motivation for Nepal. The tension between these neighbours started in 2015, when India’s actions resulted in an economic blockade. This unofficial blockade prevented the supply of essential goods, including fuel, from reaching Nepal, resulting in scarcity of essential goods and services.Footnote 56 Similarly, in May 2020 the opening of India’s new road in the Himalayas that crosses Nepalese territory resulted in diplomatic tension between the two countries.Footnote 57 Therefore these developments might have also triggered the prompt reaction of opposing India’s EU GI registration of basmati rice. This is not to take away the credit that the Nepalese government deserves for its commitment to protecting local products such as basmati rice, which is symbolic of Nepalese society.
4 Nepal’s Claim to Basmati Rice
The relationship between rice and Nepalese society is well documented, pointing to the socio-economic influence on rice landrace diversity and consumption in Nepal.Footnote 58 Socio-economic factors influence household decision-making regarding numbers and coverage of different rice varieties.Footnote 59 Traditionally, Nepalese farmers categorize rice landraces for specific purposes including home use, selling, festivals, medicines and others.Footnote 60 In other words, specific rice strains are cultivated for different usage requirement. Some rice landraces with specific qualities, such as “Aanadi”, have been used for medicinal purposes, whereas “Biramphool” has been grown for home use and “Jetho budho” for festivals.Footnote 61 To this end, land types, fertility, moisture regime and source of irrigation (cold and warm water) have been important factors in creating a favourable environment for new rice landraces.Footnote 62 In short, environment and climate play a significant role in rice production in Nepal.Footnote 63 Moreover, farmers have adopted several parameters, such as biological yield, market price, insects, pests, post-harvest factors and others, in order to develop rice diversity.Footnote 64 This demonstrates Nepalese society’s dependence on rice and how local farmers’ innovative practices have ensured diverse varieties of rice are on the market. Against that background, this section provides two main justifications for Nepal to oppose India’s EU GI registration application.
The first justification is the connection between basmati rice and Nepalese society, which highlights the social and cultural values of basmati rice in Nepalese communities. Basmati rice is a popularly grown rice variety in NepalFootnote 65 and is known for its fragrance, purity, taste and nutritional value.Footnote 66 Basmati rice is a type of aromatic rice produced widely in Nepal, mostly in the country’s Terai belt,Footnote 67 which reflects culture, symbolism and sentiments in society. The term “basmati” is popular terminology in Nepalese society, originally deriving from the Sanskrit syllables “Vas” (meaning aroma) and “Mati” (meaning possessing some quality).Footnote 68 Moreover, basmati rice is also known as “Aghani” rice in the Maithili language, which is spoken in the Terai region of Nepal.Footnote 69 Historically, basmati rice represents cultural and religious value to the local community. Not only were women named after basmati, but it also features in traditional folklore. For example, Deuda, a Nepali genre of songs and dance performed in western Nepal, often refers to basmati.Footnote 70 Likewise, basmati is also referred to during songs and dances performed in the Baisakhi festival.Footnote 71 These songs use basmati to refer to aroma and scent, and to signify happiness and celebration.
A field study conducted by scientists found that basmati rice is used in religious worship and other religious rituals in the Saptari district of Nepal.Footnote 72 This is further confirmed by the findings of a field study conducted by the Nepal Agricultural Research Council (NARC) in Jamuhani village, located in the Rupandehi district of Nepal. The study found that basmati rice has been cultivated in this community since as early as 1954, and has been used for traditional medicine and to symbolize societal norms.Footnote 73 The study highlights four points that showcase the connection between basmati rice and the people of Jamuhani. First, members of the community claim that temperature plays an important role in the production of basmati rice. Hence, they argue that the temperature in Jamuhani village is more favourable for the production of basmati rice than in India. Second, basmati rice has been produced for generations and exported to India. In other words, basmati rice was not produced for household consumption but instead was aimed at export to the nearby Indian district of Uttar Pradesh.Footnote 74 This is because of the high prices basmati rice commands. Third, basmati rice represents religious and cultural value in society. Some members of the community claim that basmati rice is cooked in households for special purposes, being a symbol of happiness and celebration in their community.Footnote 75 Even Nepalese people living outside of their country continue to associate basmati rice with Nepal. Many Nepalese restaurants in Europe describe basmati as “a type of rice grown in the Himalayas of Nepal”.Footnote 76
The second justification is scientific engagement regarding basmati rice in Nepal. Aromatic rice in Nepal is divided into two types: basmati and non-basmati. Four basmati types of rice landraces are registered at the National Seed Board of the Government of Nepal: Pokhareli Jetho Budho rice (registered in 2006); Lalka basmati (registered in 2010); Suddhodhan Kalanamak (registered in 2020); and Kalonuniya (also registered in 2020).Footnote 77 According to data from the National Agriculture Genetic Resources Centre (the genebank of Nepal) more than 50 different basmati landraces, from different parts of Nepal, have registered therewith.Footnote 78 Similarly, other forms of basmati rice are not named basmati, such as Hansraj, Kariya Kamod, Sali Dhan, Baharni.Footnote 79 Nepal also claims scientific engagement with basmati rice. This study shows genetic enhancement in high quality landraces through selection of aromatic rice, including “Lalka Basmati” in the Kaski district of Nepal.Footnote 80 It is reported that basmati rice accessions have been collected since the 1970s in several regions of Nepal.Footnote 81 To that end, the International Rice Research Institute (the IRRI) gene bank has conserved more than 20 other basmati-type accessions, such as “Basmati White”, “Masino Basmati”, “Basmati Mixed”, “Seto Basmati” and “Basmati Nokhli”.Footnote 82 It is reported that new rice varieties have been developed by breeding or particularly varietal selection of crop methods in Nepal.Footnote 83 New variants of basmati rice have also been developed by adopting such methods.Footnote 84
Overall, the above-mentioned claims emphasize that basmati rice is traditionally connected with Nepalese society and evidences a clear territorial connection with and history in Nepal. Since the 1960s, the NARC has engaged in research on basmati rice, which further confirms Nepal’s association with basmati rice. For each such association the challenge for Nepal is to create a clear specification to claim GI status. Undoubtedly, Nepal’s opposition to India's claim on basmati rice demonstrates the prevalence of basmati rice production, consumption and practice in Nepal. This means that Nepal needs to develop clear evidence demonstrating the requirement of GI protection. A clear GI specification must include: (i) the name and designation of geographical origin; (ii) a description of the product, including the product’s characteristics; (iii) a demarcation of the geographical area; and (iv) the relationship between quality or characteristics of the product and its geographical origin.
Once a specification has been drafted, it must be consulted with experts and stakeholders closely involved with basmati rice. Thus, developing a GI specification in a manner that satisfies the criteria of GI is challenging. As an LDC, Nepal should seek technical support from institutions such as the World Intellectual Property Organisation, the WTO and the United Nations Conference on Trade and Development (UNCTAD) to guide the nation’s efforts to develop a sound GI specification if the Nepalese government intends to promote basmati rice with a GI tag.
5 What Basmati Rice Opposition Means to Nepal’s GI Development
The Nepali basmati rice controversy could drive Nepal to develop a comprehensive system for GI protection. Therefore this section will evaluate three opportunities that the basmati rice debate has presented to Nepal.
Firstly, there is a opportunity to conduct a national study on GI prospects in Nepal. I have previously identified agriculture and non-agriculture products that could potentially receive a GI tag.Footnote 85 Products such as Nepali Phasmina, known as a luxury fibre that is produced from the Nepalese “Chyangra” Himalayan goat, has good prospects of gaining a GI tag.Footnote 86 Despite competition from Pashmina Kashmir from India, Nepali Phasmina is associated internationally with Nepal. Similarly, Julmi Marshi (Julmi Rice), cultivated at high altitudes since 1,300 years ago on the banks of the Tila river in the Jumla district of Nepal, enjoys a unique reputation for tolerance of cold that gives it potential for GI status.Footnote 87 Similarly, Nepal has huge potential in the craft and cottage industry: many Nepali handicrafts regularly feature at international trade fairs and are exported to the European market, thus having potential for GI protection.Footnote 88
All these products have a local and international market. This means that the GI tag can help Nepal to promote its local goods globally. Before Nepal’s opposition to India's EU GI application for basmati rice, GI did not receive such attention from the public and at the policy level. Even though the need for GI legislation regularly features in Nepal’s trade policy,Footnote 89 it had never been actually implemented. Perhaps, with the basmati rice opposition, the government will show interest in promoting and preserving products that reflect Nepal’s local traditions and cultural heritage. With that in mind, a national survey of potential products for the GI tag will further strengthen the need for a legal framework.
Secondly, there is the prospect of GIs improving rural development. An increase in voices that advocate developing sustainable rural development practices in agricultural sectors in Nepal would also facilitate GI development. The national 2014 Agriculture Development Strategy set out a 10-year action plan, and its road map emphasizes rural development as a high-priority sector in order to develop a competitive and inclusive agricultural sector.Footnote 90 The National Planning Commission plan for the fiscal years 2019/20–2023/24 has also stressed the need for policy intervention in developing a programme that empowers rural people by promoting and protecting indigenous and local knowledge, skills and technologies, and transforming the lives of rural communities by developing relevant strategies.Footnote 91 To this end, Nepal could explore GIs as a capable driver of rural development. This study suggests the potential for GIs to influence rural development. The 2022 UNCTAD report found that “a carefully designed GI system with co-ordination between stakeholders, producers, and consumers will likely promote rural development and increase exports, thus increasing revenues for both government and producers.”Footnote 92
Similarly, the 2018 report of the Food and Agriculture Organization of the United Nations includes evidence-based specific case studies which establish the impact of GIs on price.Footnote 93 The study confirms a significant positive effect of GIs on price in two ways. Firstly, by providing adequate information about the link to the origin, GIs reduce asymmetrical information between producers and consumers.Footnote 94 Secondly, through institutional arrangements, such as collective organizations, producers control supply and can increase the price or demand a price premium among value chain stakeholders by agreement.Footnote 95 This positive association is illustrated through case studies covering Colombian coffee, Penja pepper, Manchego and Tête de Moine cheese.Footnote 96 One interesting finding of the report is that Colombian coffee and Darjeeling tea achieve a fair price premium after gaining GI protection.Footnote 97 This data shows the potential of price premiums and improved market access, but one cannot assume the same results for all GI products.
Nepal’s geo-climatic conditions make it one of the richest countries in terms of biodiversity. Its geographical location, including hills, mountains and plains, with several types of climate, make it an optimum place for harvesting GIs. Moreover, Nepal’s cultural heritage and traditional practices provide an opportunity for developing products that embed both natural conditions and human intervention. About two-thirds of the population of Nepal are engaged in agriculture, contributing 28.9% of GDP, which underlines the importance of GIs for Nepal. GIs create market value due to their ability to differentiate products from others and fulfil the needs of the targeted audience. Thus for LDCs such as Nepal it is essential to have products strongly linked to their territory, which create economic value for those products, while higher sales and prices would improve rural livelihoods. This becomes more important given that Nepal is planning to graduate from LDC status by 2026, and thus having an IP regime would promote local products, while an increased price premium would contribute to rural development. In short, GIs would be an opportunity that could increase rural incomes in Nepal.
Nevertheless, it is equally relevant to understand that the positive relationship between GIs and rural development is challenged in scholarship for mainly two reasons.Footnote 98 Firstly, there is a lack of conclusive evidence to show a positive relationship between GIs and rural development. Secondly, although GI protection does spur economic development and lift up rural communities, at the same time GIs alone cannot be a basis for such an outcome. The nature of market and industry structure plays an important role in determining how GIs facilitate price premiums.Footnote 99 To this end, maintaining GIs to ensure quality and safety would levy a cost, i.e. developing a GI system requires resources and infrastructure to maximize its potential to generate incomes and benefits.Footnote 100 Even though scholars argue for GI as a policy tool for rural development, they equally caution that GIs may not significantly guarantee more income. Nonetheless, GIs are capable of contributing to sustainable development and alleviating poverty in developing economies like Nepal.Footnote 101
Thirdly, the GI framework can also be used to protect traditional knowledge, which is a term that covers the knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community. Since GI protection and traditional knowledge protect “accumulated knowledge typical to a specific locality”,Footnote 102 many scholars have argued for the protection of traditional knowledge through GI.Footnote 103 The nature of GI protection signals “local cultural idiosyncratic culture”, mirroring the relationship between society and local products.Footnote 104 Thus, GIs represent “invented traditions” and “imagined communities”.Footnote 105
Many studies have found that communities in Nepal possess indigenous and traditional knowledge developed and practiced since 1854.Footnote 106 For many years the Tharu community in Nepal has been developing eco-friendly products such as woven baskets, manufacturing rope from tree bark, and drying foods to extend their longevity.Footnote 107 Traditional products have been used for medicinal purposes for generations. For example, Yarsagumba, a unique herb that grows above 3,500 metres in the Himalayan region of Nepal, is known for curing headache, toothache and various diseases.Footnote 108 It is often referred to as “a Himalayan herbal Viagra” and is in high demand on both local and international markets.Footnote 109 Many Nepalese communities prepare traditional alcoholic beverages which have some form of nutrition and are used for hospitality. For example, “tonga”, a traditional alcoholic beverage prepared from grains, rice and wheat fermented with yeast cake, is offered to guests of the Kirata community.Footnote 110 These traditional knowledge and skills require legal protection.
The Nepali Constitution requires the government to protect and promote traditional knowledge.Footnote 111 In pursuance of that aim, the national IP policy highlights the need for a sui generis legal framework for traditional knowledge and traditional cultural expression and the need to develop a digital library of traditional knowledge.Footnote 112 Unfortunately, to date no specific laws protecting traditional knowledge in Nepal have been passed. Therefore the basmati rice discussion in Nepal might encourage policymakers to realize there is a need to protect local traditional products that have potential in the international market and reflect the sentiments of local communities and ensure sustainable livelihoods. In spite of the relevance of GI for protecting traditional knowledge, this author believes that Nepal will benefit from a specific law governing traditional knowledge. This is mainly because the GI system will benefit if emphasis is placed on a strong connection between GI and terroir.Footnote 113 This suggests that traditional knowledge may not suit GI, because indigenous people are often dispossessed of their land.Footnote 114 This may be true, but one cannot generalize about it. Nonetheless, this author believes that the best way to protect traditional knowledge is through specific legislation. However, GI could offer an alternative in the absence of law protecting traditional knowledge.
6 Resolving South Asian GIs Conflict: The Road Ahead
South Asian IP development plays an important role in the global puzzle of IP law,Footnote 115 particularly those IPRs that promote traditional and cultural heritage. South Asian countries share similar historical, geographical and socio-cultural practices. The similarity in environmental and climatic factors and the movement of people due to the open borders between India and Nepal may also result in the exchange of different skills and practices. To that end, the possibilities of conflict when it comes to claiming products for GI are understandable. The evolution of GI legislation in South Asia is the result of the lesson some countries have learned from misappropriation of the goodwill of its local products. India was the first country in South Asia to develop sui generis protection for GIs,Footnote 116 followed by SrilankaFootnote 117 and Bangladesh.Footnote 118 Sri Lanka protects GIs through consumer protection, trademark law and a sui generis system.Footnote 119 However, Sri Lanka does not maintain a registration-based system for GIs.Footnote 120 Bhutan is not a member of the WTO, but has identified branding as a weakness for export products related to cottage, small and medium-sized industries and has acknowledged the need for GI legislation as part of the broader national objective of improving the IP framework.Footnote 121Afghanistan is in the process of drafting sui generis protection law for GIs,Footnote 122 and in 2016 Pakistan published a draft geographical indication protection bill for discussion, which later became the law in 2020.Footnote 123
GI practice in some South Asian countries is relatively new, and conflict about products due to similar geo-climatic conditions may emerge. Scholars have claimed that in 2013 India registered products such as Jamdani, the Falzi mango and Nakshikanta as GIs despite those also being produced in and holding cultural significance in Bangladesh.Footnote 124 This forced Bangladesh to enact GI legislation in 2013, for fear of losing other location-based products.Footnote 125 Perhaps this was also a way to address the sentiments of local producers. Similarly, Pakistan and India continue to battle for the basmati rice title in the EU. To this end, Nepal’s claim over basmati rice further complicates the issue. Thus it is relevant to explore the possibilities to resolve GI claims. There are two ways to address this issue.
The first is adopting homonymous protection of GIs, which refers to “geographical names which are spelled and pronounced alike, but which designate the geographical origin of products stemming from different countries.”Footnote 126 In other words, GIs can co-exist in two countries if consumers are not misled. TRIPS recognizes homonymous GIs for wines, but national practices show that such protection goes beyond wine.Footnote 127 At the national level, EU regulation provides specific rules on registration and use of homonymous GIs covering agricultural products, foodstuffs and traditional specialties.Footnote 128 However, registration is not granted if homonymous names mislead consumers into believing that products come from another territory.Footnote 129
Along a similar line, India has a provision on homonymous GIs.Footnote 130 However, in the case of basmati rice, co-existence in India and Nepal as homonymous GIs will be challenging because basmati rice produced in India and Nepal may have similar tastes and scents. That said, the farmers interviewed in the case study by the NARC are of the view that the taste and scent of the Nepalese version of basmati rice differ from that of Indian basmati rice.Footnote 131 Additionally, the open border between India and Nepal and social and cultural exchange in society have deeply engrained basmati in the minds of the people. Therefore, even if basmati rice co-existed as homonymous GIs, most likely this would mislead consumers.
The second is the role of the South Asian Association for Regional Cooperation (SAARC), which could be vital in facilitating future GI disputes. The SAARC is a regional association established in 1985 and consists of eight member states: India, Nepal, Pakistan, Bangladesh, Afghanistan, the Maldives, Sri Lanka and Bhutan.Footnote 132 The main objective of the SAARC is regional co-operation aimed at promoting the welfare of the people and accelerating growth through collaboration and mutual assistance in the economic, social, cultural, technical and scientific fields.Footnote 133 On this premise, the South Asian Free Trade Agreement (SAFTA) was signed in 2004 to eliminate trade barriers and facilitate cross-border movement of goods, and to promote conditions for fair competition and establishing a framework for regional co-operation.Footnote 134 SAFTA does not per se call for co-operation on IPRs. However, the annex to SAFTA consists of a provision in which the members agree to provide technical support with regard to IPRs to LDC members of SAFTA. Given that the focus of SAFTA is regional co-operation and trade promotion, one can hope for the possibility of regional co-operation on GIs. The past successful establishment of the SAARC Energy Centre in 2005, the SAARC Food Bank in 2007 and the SAARC Seed Bank in 2011 are examples of good practices with regard to regional co-operation, and therefore that SAARC can initiate GI co-operation among its members. Nepal should consider taking this route in order to discuss the basmati rice case at the SAARC and discuss a potential regional agreement between the disputing countries addressing the use of the basmati rice name. Despite this possibility, lack of political will among member state has put the future of the SAARC into question. Therefore it may not be an immediate option in resolving South Asian GI issues. However, this author is hopeful in terms of possibilities for South Asian co-operation on GIs and IPRs in the future.
7 Conclusion
This article is motivated by the gap in the literature that engages basmati rice only from the perspectives of India and Pakistan. To this end, this article has provided the untold story of Nepal’s relationship with basmati rice and concerns India’s EU application for basmati rice. As explained throughout this article, a strong connection exists between basmati rice and Nepalese society. Traditionally, basmati rice has been produced in geographically distinct areas of Nepal and has social and cultural values in local communities. Therefore the Nepalese government should learn from the basmati rice saga and initiate detailed policy discussions about GI protection that would help promote local goods in the international market. The starting point should consist of a comprehensive survey of potential GIs and their relevance to the community and markets. This will further support the need for policy intervention to encourage rural entrepreneurship. Countries such as Nepal with agriculture-based economies must create a mechanism that ensures price premiums for local producers in rural areas. In this respect, GI can be an agent to achieve that goal. Moreover, increasing market competition and demand have forced producers to protect products such as tea and coffee through the trademark system. The challenge for Nepal is to brand its local products in order to penetrate both national and international markets. The GI system could operate as an auxiliary agent in achieving these goals.
Notes
“Nepal to Challenge India’s Geographical Indication Claims on Basmati Rice” (New Business Age, 10 December 2020), https://www.newbusinessage.com/Articles/view/12785 (accessed 11 January 2023).
The Constitution of Nepal, 2015, Art. 25(1) https://lawcommission.gov.np/en/wp-content/uploads/2021/01/Constitution-of-Nepal.pdf (accessed 11 January 2023).
For more detail, see Sect. 2 of this article.
See United Nations General Assembly, Graduation of Bangladesh, the Lao People’s Democratic Republic and Nepal from the Least Developed Country Category (11 November 2021) A/76/L.6/Rev.1
National Planning Commission Fifteenth Plan (2023), pp. 341–344 (discussing the need to promote local products for export).
“Geographical Indications” (WIPO), https://www.wipo.int/geo_indications/en/#:~:text=A%20geographical%20indication%20(GI)%20is,originating%20in%20a%20given%20place (accessed 11 January 2023).
TRIPS, Arts. 22–24. For a detailed account of the evolution of geographical indication, see Gangjee (2012).
TRIPS, Art. 22(1); Knaak (2021), pp. 407–415 (discussing the nature and characteristics of geographical indications).
TRIPS, Art. 22(2).
Ibid.
See India’s application for basmati rice registration published in the Official Journal of the European Union, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:C:2020:301:FULL&from=EN (accessed 11 January 2023).
TRIPS, Art. 66.1.
TRIPS, Preamble (“Recognizing also the special needs of the least-developed country Members in respect of maximum flexibility in the domestic implementation of flaws and regulations in order to enable them to create a sound and viable technological base”).
All the decisions of TRIPS Council on LDC extension are available at https://www.wto.org/english/tratop_e/trips_e/intel6_e.htm#:~:text=The%20Council%20for%20TRIPS%20(%E2%80%9CTRIPS,all%20WTO%20members%20and%20observers (accessed 11 January 2023).
“Extension of the Transition Period Under Article 66.1 for Least Developed Country Members”, Decision of the Council for TRIPS of 29 June 2021 (World Trade Organization, IP/C/88), https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/88.pdf&Open=True (accessed 3 January 2023).
“Action Plan for Implementation of the Agreement on Trade Related Aspects of Intellectual Property Protection: Report of the Working Party on the Accession of the Kingdom of Nepal to the World Trade Organization” WT/ACC/NPL/16 (28 August 2003).
National Intellectual Property Policy, 2017
https://moics.gov.np/uploads/shares/policy/IP%20policy%202073.pdf (accessed 3 January 2023).
Ibid. For detailed discussion, see Upreti (2017), pp. 550–552.
Nepal Trade Integration Strategy 2010 (Government of Nepal, Ministry of Commerce and Supplies, 2010), http://eifnepal.gov.np/publication/f51e0NTIS%202010%20exe%20sum%20160610.pdf (accessed 3 January 2023).
Ibid., p. 4.
Nepal Trade Integration Strategy (NTIS) 2016 (Ministry of Commerce, Government of Nepal, 2016) 3, https://www.oecd.org/aidfortrade/countryprofiles/dtis/Napal-DTIS-2016.pdf (accessed 3 January 2023).
Ibid., see Key Performance Indicators Table, p. 43.
Draft Industrial Property Bill, 2018, Sec. 83 (on file with the author).
Ibid.
Nakatsugawa (2019).
Upreti (2019a), pp. 144–155.
Nepali Orthodox Tea Certification Trademark Implementation Directive 2017, https://www.teacoffee.gov.np/public/images/pdf-21545808966.pdf (accessed 3 January 2023).
Ibid., Recital.
Ibid., see Objectives of the Directive.
WIPO Tea Lover’s Guide (2014).
Thapa (2005), p. 12.
Ibid., p. 19.
WIPO Tea Lover’s Guide (2014).
Upreti (2019b), pp. 235–265.
Ibid.
This is also case for Southeast Asia. See generally Falvey (2010), p. 183.
See Timmer (2010).
See Mishra et al. (2021).
The General Agreement on Tariffs and Trade (GATT, 1947) Art. 1. See also European Communities – Duties on Imports of Rice (DS17, 3 October 1995).
See United States Patent Number–5,663,484 granted on 2 September 1997, https://patentimages.storage.googleapis.com/a0/17/e0/f2a482dd8c81aa/US5663484.pdf (accessed 3 January 2023).
Mulik and Crespi (2011), pp. 1–21.
Robinson (2010), pp. 47–48.
Rai (2001).
Browne (2000).
Wright (2020), p. 51.
Mulik and Crepsi (2011).
Ibid., pp. 3–7.
It is important to note that when the basmati rice patent was granted the Council for Scientific and Industrial Research was challenging the turmeric patent in the US. Subsequently, the USPTO withdrew the patent, see Jayaraman (1997), p. 6.
Chakrabarty and Kaur (2021), pp. 401–427.
Das (2009).
Jhavar (2020).
Ibid.
Abbas (2021).
For a general discussion, see Upreti and Subedi (2019), pp. 646–652.
Ibid.
Dominic (2020).
Ali (1996), p. 50 (discussing the socio-economic and agronomic characteristics of rice in the Rupandehi district of Nepal).
Rijal et al. (1998).
Ibid., Table 4, p. 12.
Ibid.
Ibid., pp. 9–10.
See Chandio et al (2021), p. 101607.
Ibid., p. 15. See Thapa et al. (1992), pp. 245–265.
Pant et al. (2011), p. 50.
Mandal (2021), p. 2.
Singh (2000), pp. 140–146.
Mandal (2021), p. 4.
Joshi et al. (2021), p. 96 (the authors state “there is a Deuda songs in Western Nepal, “Basmati ko dhan pakya garai basai gaya” which means during maturity, Basmati rice emits an aroma and anyone can feel its aroma around the field”); Mandal (2021), p. 4 (reference to “basmati rice has been used in many folk songs of mithila”).
Ahuja et al (2019), p. 211 (stating “Jhorha song is a fair dance song and is referred as Hathjhorha in Nepal … The fair is held [at] the Baisakhi festival wherein men and women dance holding hands. One of such long songs runs… [as] “Basmati ropanya syara O bamja Jhuprali bamjal! syamgiri ropicha, bamja O Jhuprali bamja”).
Mandal (2021), p. 4.
Nepal Agricultural Research Council Field Research (2021).
Ibid (discussing that basmati rice was exported to Partawal town in Maharajgang district of Uttar Pradesh India).
Ibid.
For example, a restaurant in the UK highlights Basmati in its menu as “a type of rice grown in the Himalayas of Nepal. It is a long grain rice that is characterized by a light nutty flavour, and becomes longer still when cooked. … The rice is lighter and more fluffy, and does not stick together”), https://everestbasmati.co.uk/pdf/Basmati-Menu.pdf (accessed 11 January 2023).
Joshi et al. (2021), pp. 93–108, 98 Table 1.
Joshi et al. (2021), p. 100, Box 1 (a total of 80 different forms of basmati type landraces not named as basmati are identified).
Gauchan et al. (2002), p. 33.
Joshi et al (2017a), p. 222–223.
Notice of Opposition filed by Nepal against India’s GI registration for Basmati (on file with the author).
See Conroy et al. (2009); Country Report on the State of Nepal’s Plant Genetic Resources for Food and Agriculture (Commission on Genetic Resources for Food and Agriculture, 2008), https://www.fao.org/3/i1500e/Nepal.pdf (accessed 3 January 2023).
“Variety Proposal Format for Commercial Release of Agriculture Crops”, Ministry of Agriculture and Cooperative National Seed Board Variety Release Committee, https://assets.publishing.service.gov.uk/media/57a08c9de5274a31e0001314/RLPSRvariety.pdf (accessed 12 January 2022); Joshi (2005), pp. 10–22.
Upreti (2019b), pp. 256–265.
“Pashmina in Brief” Nepal Trade (October 2012), p. 6, http://www.enhancedif.org/en/system/files/uploads/nepal-trade-issue-4-english_0.pdf (accessed 3 January 2023).
Paudel (2011), p. 31. “Brief Introduction” (District Coordination Committee Office – Jumla
District) http://ddcjumla.gov.np/en/ (accessed 3 January 2023).
For more details see Handicraft Association of Nepal, http://fhan.org.np/dashboard/menu/14/0/1 (accessed 3 January 2023).
World Trade Organization, Trade Policy Review, Report by Nepal (WT/TPR/G/381, 8 October 2018), p. 17.
Chaudhary (2018), pp. 37–38.
National Planning Commission Fifteenth Plan (2023).
UNCTAD, The Case for Geographical Indication Protection of the Mozambique White Prawn (UNCTAD/ALDC/2022/2), https://unctad.org/webflyer/case-geographical-indication-protection-mozambique-white-prawn (accessed 3 January 2023).
Vandecandelaere et al. (2018).
Ibid.
Ibid.
Ibid.
Ibid.
Drahos (2017), p. 272.
Frankel (2017), p. 150.
Neilson et al. (2018).
Cottier and Panizzon (2004).
Broude (2005), p. 674.
Ibid.
See Maden et al. (2008).
Koirala (2021).
Sharma et al. (2009), p. 573.
Ibid.
Ibid., pp. 85–86.
Nepal Constitution, Art. 51 of Part 4: Directive Principles, Policies and Obligations of the State.
National Planning Commission, Fifteenth Plan (2023), p. 192 (emphasising the need for registration and documentation of intellectual property of indigenous and local communities).
See Calboli (2015).
Scholars have argued that the geographical indication system may not be a suitable option for protecting traditional knowledge, see Frankel (2011).
Liu and Zheng (2020), p. 249.
See the Geographical Indications of Good (Registration and Protection Act, 1999).
See Marsoof et al. (2022).
The Geographical Indication of Goods (Registration and Protection) Act, 2013. https://www.wipo.int/edocs/lexdocs/laws/en/ug/ug027en.pdf (accessed 11 January 2023).
See Chapter XXXIII of Intellectual Property Act, No. 36 of 2003, https://www.wipo.int/edocs/lexdocs/laws/en/lk/lk004en.pdf (accessed 11 January 2023).
Marsoof (2018).
See Cottage, Small and Medium Industry Policy of the Kingdom of Bhutan, 2012, https://www.gnhc.gov.bt/en/wp-content/uploads/2017/05/CSMI-Policy-2012.pdf (accessed 3 January 2023); Cottage, Small & Medium Industry Development Strategy (2012–2020) & Action Plan (2012–2014) https://www.moea.gov.bt/wp-content/uploads/2017/07/CSMI-Action-Plan-2012-2014.pdf (accessed 11 January 2023).
The Law of the Islamic Republic of Afghanistan Draft Law on Geographical Indications. https://www.wto.org/english/thewto_e/acc_e/afg_e/WTACCAFG7A1_LEG_6.pdf (accessed 11 January 2023).
The draft Geographical Indication Protection Bill, 2016, https://gain.fas.usda.gov/Recent%20GAIN%20Publications/Pakistan%20Drafts%20Geographical%20Indication%20Protection%20Bill_Islamabad_Pakistan_12-13-2016.pdf (accessed 11 January 2023).
Ibid.
Addor and Grazioli (2002), p. 867.
TRIPS, Art. 23 (3).
EU Regulations No 1151/2012, Art. 6(2).
Ibid.
See Sec. 10 of Indian Geographical Indications of Goods (Registration and Protection Act 1999).
Nepal Agricultural Research Council Field Research (2021).
For more details on SAARC, see https://www.saarc-sec.org/ (accessed 11 January 2023).
SAARC Charter, Art. 1.
SAFTA was signed at the 12th SAARC Summit in 2004, Art. 3, https://www.saarc-sec.org/index.php/resources/agreements-conventions/36-agreement-on-south-asian-free-trade-area-safta/file (accessed 11 January 2023).
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I am grateful to Queen's University Belfast for making this article open-access. This article has benefited from the author's engagement in the SHARE project "Shaping, fixing and making markets via IPR: regulating sustainable innovation ecosystems", funded by the Academy of Finland.
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Upreti, P.N. The Battle for Geographical Indication Protection of Basmati Rice: A View from Nepal. IIC 54, 710–731 (2023). https://doi.org/10.1007/s40319-023-01323-w
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DOI: https://doi.org/10.1007/s40319-023-01323-w