Branding Scotch but what about Taj Mahal?

Darjeeling, Basmati, Scotch

CYBER AGE From The Statesman
ND Batra

Recently, when I visited my colleague, he offered me a cup of Darjeeling brew. And whenever I used to visit my cousin in Mumbai, he would offer me Scotch.

I anticipated the pleasure and knew what I was getting. The recent Delhi High Court ruling that Indian brewer Golden Bottling cannot appropriate “scotch” or similar sounding words to brand its own whiskey is a most remarkable decision in the sense that it recognises a geographical region as the site of a global brand, which is in accordance with the Geographical Indications (GIs) clause of the WTO-TRIPs agreement. GIs confers intellectual property rights on a product from a region “where a given quality, reputation or other characteristics of the good are essentially attributable to its geographical origin”. Basmati and Darjeeling are no different from Scotch, are they?

The only way to get a sensible grip on a widely misunderstood but fashionable concept, knowledge-based society, is to define it in terms of intellectual property rights. Much of the rest is propaganda to shock and awe the innocent.

Many of us still can’t get over the shock that that a Texas-based company, RiceTec, was given the patent for a supposedly new strain of Basmati rice. Something which has defined the Indian sub-continent for centuries was gobbled up by a knowledge-based society, where assembling, re-assembling, storing, patenting and branding of information is becoming a major source of wealth, power and hegemony.

Contrary to what you learn from the high-minded, a knowledge-based society is not one whose members are inquisitive, knowledgeable, skilled or willing to learn all their lives. Rather, it’s a society where information and knowledge are created for money. It is its ability to build legal infrastructure, enforce laws and claim ownership of information through copyrights, brands, trademarks and patents. Danjaq and United Artists warn that only they can make James Bond 007 television and film series. RiceTec too asserted the claim that only it should have the right to call its rice variety Basmati including its variants, Texmati, Kasmati, etc., and forbid others from using similar sounding brand names.

It goes much against the popular belief, but a patent’s legal force does not lie in giving one the permission to exploit an invention; rather it permits its owner to exclude others from making, using or selling the invention. If it had gone totally unchallenged, the RiceTec patent might have been be used to exclude Basmati traders and exporters of the sub-continent not only from the US market but also from the rest of the world markets. It may sound far-fetched and paranoid that this could ever happen, but the law, they say, is like an Indian donkey: it can hit anyone with any leg at any time. But mostly the donkey favours the rich and the powerful. Competition for a share in the world marketplace is so ruthless that few would disagree with Intel’s CEO Andy Grove when he says, only the paranoid survive.

It’s not so simple to answer the question, what is patentable? US law requires that the invention must be practical, deal with processes, machines, manufactures, compositions of matters; or the new uses of the above. It must be useful, novel and non-obvious (unique). Plant patents, under which rice plant falls, according to US Patent and Trademark Office, “are granted to any person who has invented or discovered and asexually reproduced any distinct and new variety of plant, including cultivated spores, mutants, hybrids, and newly found seedlings, other than tuber-propagated plant or a plant found in an uncultivated state.” But Basmati is not only rice. Like Scotch and Champaign it is the flavour of a region, a cultural icon.

Since the uses and unique attributes of Basmati have been known for centuries, so one might ask: What did RiceTec add to it for which the company was granted a patent on some varieties? Probably nothing worth patent-able, but it does give us a glimpse into the shape of the knowledge society to come: creation of brand names, trademarks, value added-information; and not the least the ability to exploit information for commercial purposes through international treaties, backed by diplomacy, legal chicanery, FDI or even brute force.

This is, however, not to belittle the importance of intellectual property rights, without which writers, creators and inventors will perish, and society will stagnate. But we must demystify the slogans of the emerging information society and understand its modus operandi, its terms of empowerment.

Consider the trademark law, which was originally enacted to prevent unfair competition, and is used to protect words, symbols or images that identify a business or its products. Trademarks have existed since the Middle Ages and they have been always protected under the common law of usage. Coke, for instance, is a distinctive trademark of the Coca-Cola Company and it would be unfair competition if some other company were to use it. So are Kodak, Xerox, Exxon, the Golden Arches, etc. But when Donald Trump, a New York real-estate tycoon, plunders a cultural symbol like the Taj Mahal and uses it as trademark for his gambling casino in Atlantic City in New Jersey, there is something wrong the way the world is turning into a global marketplace. If a knowledge-based society uses religious icons and other sacred names to sell sneakers and other consumer goods, it is time to challenge its presumptuousness.

Commenting upon India and Pakistan forming a working group to bring Basmati into the GIs fold, Ashfak Bokhari wrote in the Dawn: “More often than not, bio piracy occurs in the West and that too primarily because of the inherent western bias towards the Third World. The West still suffers from the ‘Columbian blunder’ and assumes it has the right to plunder the resources of the non-West countries by treating their people’s knowledge systems as non-existent, hence empty of prior creativity and prior rights, and hence available for ‘ownership’ through the claim of ‘invention’.”

The (mis) appropriation of Basmati, a defining culinary-religious symbol of the Indian subcontinent, into an intellectual property right, as RiceTec has done, is a cultural assault and must be fought tooth and nail, along with other misappropriations of cultural symbols and sacred images of ancient civilisations, wherever they happen.