Does Jamnagar diesel equal Basmati?

Late last year, Reliance Industries Ltd. (RIL) filed a geographical indications (GI) application for its Krishna-Godavari gas and Jamnagar petrol, diesel and LPG. The application sought authorised usage of the name "Jamnagar LPG, Oil, Petrol and Diesel". The Office of the Chennai-based Controller-General of Patents, Designs and Trademarks, which is the national registrar of GIs, examined and approved RIL's application. Approval was subsequently notified through the GI journal. The GI Journal is a publication of the Ministry of Commerce, Government of India, in which all GIs approved by the government are notified, following which the government invites public objections.

As our readers would recall, GI is a sign used on goods that have a specific geographical origin and possess qualities or a reputation due to the particular place of origin. Most commonly, a GI comprises the name of the place of origin itself. India passed the Geographical Indications of Goods (Registration and Protection) Act 1999 with a view to provide for the registration and better protection of GIs relating to goods. As an economic benefit, GIs act as an authenticity/quality mark. This is a factor in enhancing export markets and revenues. A wide variety of products in India like Darjeeling tea, Kancheepuram silks, Chanderi silk sarees, Alphonso mangoes, Basmati rice, Kohlapuri sandals, Bikaneri Namkin, Himachal and Kashmir apples, Petha from Agra, Pedha from Mathura, etc., could have the GI sign. A few have been registered so far, for e.g. Chanderi silks.

While a trademark is used to distinguish a good or a service of one enterprise from another's, GIs are used to identify goods having special characteristics and originating from a definite geographical territory. This is perhaps the most crucial distinction and one that does not hold for Reliance's application. If RIL is granted the GI, its Jamnagar petroleum products will have benefits that do not rightfully belong to them – simply because petroleum products originating from Jamnagar are not inherently superior or unique to those originating in other parts of India or the world.

There is a key distinction between the character of a 'legitimate monopoly' granted by GI and 'monopoly' as understood in an absolute business sense. GI grants a certain monopoly to a product (with qualifications of quality control and assurance) which is based on the unique characteristics and reputation of a product which in turn are a function of its geographical origin. This monopoly is a collective one, owned by a group or at times a community of authorised users, whose rights and traditions the GI indirectly protects. This leads to greater brand equity and to value addition. Internationally, the GI 'tag' stands for quality, tradition and the unique selling proposition (USP) of the geography.

On 17 April, Vinay Jain, a leading GI consultant in India, filed objections in his individual capacity to RIL's application. Jain has worked closely with several UN agencies on establishment of NGOs, registration of GIs like Chanderi, and developing a strategy for their enforcement. According to Jain, the RIL's application does not fall within the definition of GI in the law. "The application is totally mischievous and filed in order to generate exclusive marketing rights and monopoly which are not in existence and which cannot be conferred to a commercial company like Reliance Industries Ltd.," he says.

The following are the specific grounds Jain cites for his objection:

First, RIL consolidated its filing for four different products into one application which the GI Act of 1999 does not allow. This qualifies as a clear case of illegal consolidation and evasion of fee payable on GI applications. The application was thus not filed in accordance with law and remains liable to be dismissed.

Second, the application does not mention one of the essential ingredients of the GI, i.e., the "Characteristics" of the petroleum products attributable to the given geographical area. The characteristics given by RIL are as per ISO specifications which have no association with geography. Quite significantly, the process of production is not unique to the given geographical area and there is no contribution of the geographical location or any of its constituents and ingredients.

Third, the name Jamnagar is generic in all respects. Everyone in the region has the right to use the name. The petroleum products which RIL seeks to register as GI are also generic and in use by people across the world. Giving GI status for these products to one applicant alone amounts to giving that applicant exclusive marketing rights for the Jamnagar name, which is not the objective of the law.

Jain asks to consider what the GI law demands in Section 9 of the GI Act 1999: (verbatim)

Explanation 1: For the purposes of this section, "generic names or indications" in relation to goods, means the name of a good which, although relates to the place or the origin where the goods was originally produced or manufactured, has lost its original meaning and has become the common name of such goods and serves as a designation for or indication of the kind, nature, type or other property or characteristic of the goods.

Explanation 2: In determining whether the name has become generic, account shall be taken of all factors including the existing situation in the region or place in which the name originates and the area of consumption of the goods.

Four, the GI law assumes multiple authorised users for a GI, not just one. According to Jain, RIL is not entitled to file the present application under Section 11 of the GI Act 1999. According to this section, the application can be filed only by the group of persons associated with the proposed GI. In the present case, the application has been filed by Reliance – the sole applicant and the sole user -- which is certainly not in conformity with the provisions of the law.

The plants, machinery and the set up are all in exclusive control of the applicant, with no control of other users in the region. The money spent in establishing the plants are an exclusive investment of RIL. There is no mention of other authorised users who may be using or benefiting by the proposed GI if it is registered. There is also no mention that the profits derived by the applicant shall be distributed among the authorised users – which the GI law necessitates. Despite Jain's request to the Office of the GI Registrar in Chennai, the list of authorised users (according to Clause 1 (c) of the notification) has not been supplied to him. "Apparently no such list is in existence," Jain says.

Also related to this unilateral attempt by RIL to get the GI is the question of the logo. RIL has proposed that its own logo be used and not that of any 'authorised users'. But RIL's logo has no relation to the given geographical area.

Finally, the petroleum products in the given area have no historical linkage or relevance. RIL is engaged in this commercial activity only since 1991. Hence there is no historical element in the production of Jamnagar petroleum products for them to merit the status of GI. The case RIL is pleading is one of recent business association with a location. But the spirit of GIs calls for long-standing history and association with a geographical region.

As part of routine procedure, a seven member expert committee was set up by the Chennai GI office to evaluate the claims of RIL. But the clarity in this case leaves virtually no room for scrutiny, and the setting up of the committee was itself perhaps a waste of government time and resources.

What is worrisome is the speed at which their application has been processed. In itself, this may be an indication of the control that the business empire enjoys over government machinery. For RIL's application, the entire process prior to publication in the GI journal was completed in record one month's time while other crucial applications like that of the Basmati GI are pending for almost two years. The Basmati application is still in the 'pre-examination stage', i.e., not even examined by an expert committee. Whether petroleum products produced by Reliance in Jamnagar can be placed in the same basket with potential GIs like Basmati rice appears to be a no-brainer.

Tushar Pania at RIL's Corporate Communications office in Mumbai said their office "refuses to comment on the issue at this moment."