As a Bengali, I can testify that there are two food items that have always ruled my plate – fish cooked in mustard oil; and fresh, hot Rasogollas. While this could appear to be a generalization of sorts, I haven’t met many Bengalis in my life with palates that are incongruous with the above. So, last week, when news of the GI tag for ‘Rasogolla’ being granted to West Bengal, spread across the country, the topic of “Geographical Indications” came up for deliberation at the breakfast table. (A day I never really imagined would come, to be honest.) And when it did, I found myself placed rather awkwardly, on the unpopular side of the debate.
(Disclaimer: long post ahead)
On November 14th, West Bengal was granted the GI tag for the ‘Banglar Rasogolla.’ For the benefit of our readers, the application number is 533. On a quick aside, a geographical indication is an indication that identifies a certain good/product as being originated/manufactured in a particular territory, when the characteristics/reputation of that good or product is attributable to that particular territory or place of origin. The GI, thus, elevates a good or product of a particular area, or region, to a higher level in the market, such that consumers are willing to pay higher amounts for such distinguished, unique products. (See here. Our earlier posts on the same can be accessed on our archives here.)
A perusal of the statement of case, and other documents, of the ‘Banglar Rasogolla’ (loosely translating to “Bengal’s Rasogolla”) reveals that the GI was granted for all rasogollas that are of the white, spongey, syrupy variety and that are manufactured and marketed in the entire state of West Bengal. Although the popular sweet is admittedly reminiscent of Bengalis and Bengali culture, a bunch of things about the application, are slightly awry – being as they are, at odds with the GI Act itself.
- The Applicant
The applicant for the GI application for Rasogolla is the West Bengal State Food Processing and Horticulture Development Corporation Limited (WSFPHDCL). As Prashant explains in his article here, this is a government controlled body that does not satisfy the statutory mandate of being an “association of persons or producers or any organisation or authority established by or under any law for the time being in force representing the interest of the producers of the concerned goods” to qualify as an applicant, as under section 11 of the GI Act, 1999. Meaning, that the only time a government run institution can apply for a GI tag, is when it represents the interests of the producers of the product intended to be protected by the said GI. This was raised as an objection by the Registry in the Examination Report as well. However, the objection was countered by the applicant in their reply to the Examination Report, by claiming, “West Bengal State Food Processing & Horticulture Development Corporation Limited (W.B.S.F.P. & H.D.C.L) is an autonomous body registered on 16.04.1986 under Registrar of Companies act and uphold interests of entrepreneurs and artesian in Sweet making industry of the state. The main objective of W.B.S.F.P. & H.D.C.L is to help in promoting the development of Food Processing Industries in West Bengal through constant guidance, hand holding and support to FPI entrepreneurs and artisans.”
For one, the reply only carries an aloof statement without any sort of evidentiary justification for the same.
Second, I accessed the website of the West Bengal State Food Processing & Horticulture Development Corporation Limited. Their “About Us” page is entirely at odds with their reply to the examination report. It says, “West Bengal State Food Processing & Horticulture Development Corporation Limited is a company wholly owned by the Government of West Bengal under the administrative control of the Department of Food Processing Industries & Horticulture.”
Third, and most important, none of their stated objectives speak of the manufacture or marketing of sweet meats. Atleast as per their website, their activities are restricted to the manufacture, production and marketing of seeds, plants, fruits, vegetables and processed foods – i.e. “tomato ketchup, squash, green mango beverage, jam, jelly, kasundi, pickles, chilli sauce, spices etc.” I’m not sure if the rasogolla that the applicant attempts to protect by way of its application, the one that is freshly made every day in the wee hours of the morning, by toiling workers in the many sweetmeat shops across the state, qualifies as “processed food” (see here and here). Perhaps the only rasogollas that come under this definition, are the preserved ones – sold in huge tins and cans by established confectioneries that have a number of chains across the country.
Fourth, as Prashant notes, the applicant, in their reply seems to justify the lack of representation of producers of the Rasogolla by conceding that there are over 100,000 sweet shops across West Bengal who are represented by the ‘Paschim Banga Mistanna Byabsayee’, which association is incapable of “handling critical issues of GI Registration and rights conferred to the applicant.” Is such a concession enough to permit a direct contradiction of an express provision of the GI Act?
- The uniqueness of the ‘Banglar Rasogolla’
The application includes the geographic area of the entire state of West Bengal, for the grant of the GI, but does not demonstrate why the ‘Banglar Rasogolla’ is unique to the state of West Bengal. Apart from the general definition of a GI which mandates that a product has to be unique to an area, the Act, under section 8, provides that a GI has to be registered for goods in respect of a “definite territory” of a country. This “definite territory” principle is at the heart of “Geographical Indications” as a concept. When a GI is granted for a product, this product is supposed to be unique to that particular area, containing qualities that are not capable of being reproduced anywhere else. (Think Darjeeling Tea; One does not have to be tea connoisseur to know that the tea grown in Darjeeling, is vastly different from the tea grown in Assam or Ceylon.)
Another notable thing, is that for a GI to be registrable in respect of a territory, there should ideally be homogeneity in the production of the product throughout the entire registered territory. That is another objective of a GI, (a consumer oriented one) to ensure that products of the particular GI area, are not different from each other. This is also why, most advocates of GI often argue that the territory in respect of which a GI is granted, should be a smaller, well-defined, specific one.
The ‘Banglar Rasogolla’ GI application makes no demonstration as to how (a) the “Banglar Rasogolla” is different from similar rasogollas produced across the country, and (b) how they’re going to ensure that all the registered users of the GI tag achieve homogeneity in the production of their rasogollas.
A Crooked Understanding of GI?
This whole Rasogolla issue has also revealed the crooked way in which GIs are understood, applied and enforced in our country.
Impending genericide of the ‘Banglar Rasogolla’?
A GI cannot be granted in case it has turned generic – i.e. if the GI is such that it is used to identify the product in general, instead of the unique place of origin of the product, then it cannot be registered or used, by virtue of it having fallen prey to genericide. In order to determine whether a GI has become generic, account should be taken of the area of consumption of the product and also the existing situation in the region/place that the name situates. (See explanation to section 9 of the Act; also see here and here)
The Rasogolla is a sweet made widely across the country. Most rasogollas, manufactured and produced across the country, possess a general likeness that could induce ordinary consumers to believe that they are all the same type of sweet. To call the entire category of white, spongey rasogollas as ‘Banglar Rasogolla’ and attribute their general characteristics/ reputation/ quality to only one state in India, is to ignore the fact that it is in fact a much loved, widely made food product that adds to the revenue of many sweet vendors across the country.
Does this mean that all producers of Rasogollas across the country will immediately just stop doing producing this sweet? I don’t think so. Does it, then, mean that all of these other rasogollas made by sweet shops across the country lose their authenticity? Not at all! Even if such producers cannot use the ‘Banglar Rasogolla’ GI tag, in obedience of the GI Act – I doubt makers of the rasogolla, in other states will stop producing and marketing these sweets by their usual name i.e. ‘Rasogolla.’ I also doubt the average consumer will find the so called ‘Banglar Rasogolla’ to be any different from the average rasogolla, or the authenticity of the latter to be lacking in any way. If ordinary consumers cannot tell the difference between the rasogollas available elsewhere, and the so called ‘Banglar Rasogolla’ from West Bengal, do we run the risk of a sort of covert genericide of this GI? Especially when, (and this is largely attributed to the mis-reportage by the media) most people don’t know that the GI has in fact been granted for ‘Banglar Rasogolla’ instead of just the ‘Rasogolla’ in general. The latter, already being a generic term used for spongey, syrupy sweets – regardless of colour, shape, texture, etc.
Whom does this GI protect?
Another aspect that deserves some deliberation is – whom will this GI truly end up protecting? As far as I understand the concept of a GI, its aim is to promote and empower localized producers/manufacturers of age-old, traditionally developed products. This is why there has been so much debate and discussion on post-GI formalities and efforts (or the lack of efforts) by the government to help producers and manufacturers monetize their GI. In this case, if consumers cannot identify the difference between ‘Banglar Rasogollas’ and ordinary rasogollas, will they be willing to pay higher amounts for a product that remains undistinguished in the trade? Even if they are, and this popular sweet is to be packaged and marketed across the country – it would be the preserved, processed, canned variety that is manufactured and marketed by bigger, more established confectioneries, instead of by local producers, at the smaller sweet shops across the state. (Also for the record, the former tastes nothing like the latter.)
Lack of any opposition
Another interesting thing about this GI application is that it did not face any opposition at the post-examination stage. The GI Act, 1999 under section 14, provides for challenge to the application by way of opposition to the same, once the application has been advertised, post its examination. Upon perusal of the application, available in full on the website, it is apparent that the application almost sailed through after it cleared the examination formalities at the GI registry. This is strange considering the issue, from the very beginning, was shrouded by a dramatic battle between two states. Why did the Orissa government, or any other party for that matter, not oppose this application over the two long years that it stuck out at the registry? How is the grant of a GI tag for one of the most popular sweets, manufactured widely across the country, not a cause for concern for producers and sweet vendors across the nation? Is this attributable to a lack of awareness on the part of the public – especially producers and their associations? Or just an instance of a complacency, that is undesirable, but rampant within our markets?
The grant of this GI has thus, contrary to popular opinion, been largely unwelcome within the IP academia. As Ms. Latha Nair and Kartik note in an earlier post, this would mean that we can potentially grant GIs for inter alia, a “MP/Maharastrian poha” or a “Kerala Appam” – I’m sure each of these would meet the criteria upon which the ‘Banglar Rasogolla’ has been granted. As a country that appears to be waking up to a refreshing IP conscience, is this really a precedent we want to set?
P.S. I am open to views/counterviews by our readers. As long as you remember to do so over a plate of fresh, hot rasogollas!
Image from here.