Rasagolla, the king of sweets, forms an integral aspect of the culinary culture, history and tradition of India, especially its eastern part. The sensitivities surrounding the recent debate over the claim of origin and ownership of Rasagolla by the states of West Bengal and Odisha has certainly been unfair and unnecessary. The importance of GIs in products like Rasagolla, however, goes far beyond trade and commerce; it is linked to India’s culinary history and culture.  It has to be understood in the wider context of protecting and preserving intellectual property pertaining to traditional cultures, assets, and production methods.

The West Bengal Government’s penchant to get a GI tag for Rasagolla led it to the Geographical Indication (GI) Registry, Chennai vide an Application seeking GI protection. According to the Intellectual property India website, GI Number-533 was registered on 14 November 2017 in the name of West Bengal State Food Processing and Horticulture Development Corporation Limited with respect to “Banglar rasgolla”.

Experts believe that the tag could not have been given for the sweet as a whole since “Rasgulla” or “Rasagolla” is a generic term. The West Bengal Government went into a celebratory mode claiming that it had won over Odisha in the battle for rights over the ball-shaped white, juicy and spongy sweet though GI tag was denied on “Rasagulla” which is a generic term.

Battle lines were meticulously drawn for the boundary-sharing states in terms of food history, culture, anecdotes and possibly reams of old newspapers, testimonies from traditional confectioners and folklore. The West Bengal government claimed that the iconic Rosogolla was invented by Nabin Chandra Das, a notable Bengali confectioner in 1868. On the other hand, according to Odisha Government, the origin of “rasagolla” is rooted to the Lord Jagannath Temple, Puri and dates back to the 12th century. Odisha also cited Pundit Suryanarayan Dash’s Sahitya Akademi award-winning ‘Odia Sahitya ra Itihasa’, which mentions ‘Dandi Ramayan’ and its pointers to Odia food including rasgolla.

But the fallacious fight is destined to take the battle nowhere. Rasagolla is no more confined to Bengal or Odisha, it has become a pan-Indian favourite making the GI verification irrelevant.  Experts believe that it is a ridiculous idea to even think of getting a GI for something like the rasagolla. What commercial or competitive advantage does it offer? It is like seeking a GI tag for your daily ‘Roti’. Whether it originated in Bengal or Odisha, it is a popular sweetmeat across the country and also in many parts of the world where Indians reside.

Protection of origin-based products can be traced to the medieval period and southern Europe France was the first nation to introduce legal protection for products linked to a geographical region. Over time, the legal frameworks protecting origin-based products travelled to different parts of the world. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) contains the current framework for the international protection of GIs. Consequently, member countries frame their own rules which are complemented by a series of grandfathering or insulating provisions.

A GI sign symbolises a product originates from a particular place and its qualities, characteristics and reputation are due to the place of origin.  For example, Darjeeling tea which is popular across the globe and cannot be replicated elsewhere because of the unique climate, soil and hilly slopes of Darjeeling. The same can be said for sparkling wine from the Champagne region of France and so on. The World Intellectual Property Organisation (WIPO) defines GI as, “A sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin.” It clarifies, “In order to function as a GI, a sign must identify a product as originating in a given place.” In addition, the qualities, characteristics or reputation of the product should be essentially due to the place of origin. Since the qualities depend on the geographical place of production, there is a clear link between the product and its original place of production.

This definition underlines a twin test to be satisfied before granting GI i.e.  the product should originate in a specific region/place and its qualities, characteristics or reputation should be uniquely attributable to such region/ place. The Indian Geographical Indications of Goods (Registration and Protection) Act, 1999 also specifies similar test.

The second aspect requires specifying from the perspective of uniqueness of the region and not from history. Bengal’s claims have been based entirely on history. Similarly, Odisha’s rebuttal also rested on the 600-year-old culinary history at the Puri temple. Both sides failed to establish the linkage of Rasagolla to their respective regions and specific chacerstics of the area. Without considering this basic point in question, the GI registry has erroneously granted GI tag to “Bangla Rasagolla” though Section 9(f) of the GI Act, 1999 prohibits registration of generic names or indications of goods that are not protected or ceased to be protected, or which have fallen into disuse. The king of sweets deserves not to be monopolised by any state or any person in India.

West Bengal’s GI Application sailed through easily in the absence of any pre-grant opposition. Section 14 of the GI Act, 1999, provides for challenge to the application by way of opposition, once the application has been advertised after its examination. A browsing of GI website reflects an unopposed and easy sail-through for West Bengal which suggests either complacency or lack of awareness by the Odisha Government or any other party for that matter. Surprisingly, grant of GI tag to the most popular sweet escaped the attention of lakhs of sweet producers and vendors across the country.

However, certain aspects could have been validly raised at pre-grant opposition stage. First, the West Bengal State Food Processing and Horticulture Development Corporation, the applicant, is not a “Sweet producers’ Association” as contemplated in the Act. Second, the application did not demonstrate how the “Bangalar Rasagolla” was unique to the state of West Bengal as echoed in Section 8 of the GI Act which is its heart and soul (e.g. Darjeeling Tea, Sambalpuri Saree, Coorg Orange etc.). Third, the GI application failed to demonstrate how the “Banglar Rasogolla” is different from similar rasogollas produced across the country.

This issue reveals that GI is not properly understood, applied and enforced in India. The GI regulatory framework is still wishy-washy and isn’t as robust as its patent counterpart. IP rights in the form of GI are bureaucratically channelled through an Intellectual Property Office at the national level which is facing relative obscurity in this area of law. In the instant case, there is a sense that the conceptual underpinnings of GIs have not been rigorously examined.

The heterogeneity of concepts and forms coupled with scholarly neglect also precipitates a more fundamental question on their wisdom in the current episode. This opens up the space to fundamentally reassess the basis as well as techniques for GI protection in India which can be a subject matter of adjudication before Appellate Courts.

(The writer is an Advocate, Supreme Court of India)