This is another Scotch Whisky victory and this time a big one. Terms such as SCOTCH, SCOT, SCOT, SCOTTISH have bneen declared as Geographical Indications by the Courts. As i say Read On!!-
NEW DELHI: In a development that could jolt the burgeoning liquor industry, the Delhi High Court has held that the Indian whisky manufacturer cannot use the word “scot” or “scotch” in compliance with the WTO agreement.
In the first ruling in India relating to the protection of Geographical Indications (GIs) under the WTO-TRIPS agreement, Justice Madan B Lokur agreed that the words “scot” or “scotch” identify whiskey produced in Scotland and no domestic manufacturer can use them to market its liquor.
The judgement was delivered on a lawsuit filed by the Scotch whiskey association of UK seeking to restrain permanently, an Indian whiskey manufacturer from using the name “Red Scot” or any other name containing the word “scot” to sell its product.
While decreeing the suit ex-parte, the court directed Golden Bottling, operating from Delhi and Alwar in Rajasthan, to pay damages of Rs 5 lakh to the UK-based Scotch Association and its members for passing off its whiskey as scotch whiskey.
The court accepted the arguments of advocate Pravin Anand, an IPR expert, that under the WTO-TRIPS agreement, protection was provided for GIs, which identifies the good originating in the territory of a member or the goods which are essentially attributable to its geographical origin. “I am satisfied that the domestic manufacturer is liable to be restrained from passing off its ‘red scot’ whiskey as a produce of Scotland.
This can only be done by injuncting it from using the word ‘scot’ or any other word similar therto in the whiskey manufactured by it,” the judge said. The court added that since domestic manufacturers did not prefer to contest the lawsuit, it appears they were not averse to dropping the word ‘scot’
The suit was filed under the Geographical Indications of goods (registration and protection) Act, 1999, which was enacted as a result of the WTO-TRIPS agreement. Mr Anand had alleged that Golden Bottling was using the word “scot” to pass off its whiskey by giving an impression that it orginates in Scotland or that it was scotch whiskey.
The association had claimed damages contending that the reputation of scotch whiskey has been irreparably damaged by the use of word “scot” in whiskey manufactured by the domestic company.
Accepting arguments that the sale and manufacture of the whiskey were in violation of the new law, Justice Lokur said, “In view of the well settled law laid down by this court and reiterating the necessity of preventing a violation of IPR of parties, I think it would be appropriate, if the damages as prayed by the association to the extent of Rs 5 lakh are granted”. The court also directed Golden Bottling to pay Rs 3.1 lakh as litigation cost to the scotch whiskey association.
Source -Economic Times
Reported - MONDAY, APRIL 24, 2006 01:35:26 AM on Economic Times Website
2 comments:
Another article on the same case. If you surf the net you will find a large number of such articles.
Darjeeling, Basmati and Scotch
ND Batra questions the presumptuousness and terms of empowerment of intellectual property rights
By ND Batra
AsiaMedia Contributing Writer
Monday, April 8, 2006
Recently when I visited my colleague in the United States, he offered me Darjeeling. And whenever I used to visit my cousin in Bombay, he would offer me Scotch.
The Delhi High Court recent 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 recognizes a geographical region as the site of a global brand, in accordance with Geographical Indications (GIs) clause of the WTO-TRIPs agreement. GIs confer intellectual property rights on a product from a region "where a given quality, reputation or other characteristic 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 the 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 about the 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 that only they should have the right to call its rice variety Basmati (or its variants such as Texmati and Kasmati) and forbid others from using similar sounding brand names.
It goes much against the popular belief, but a patent's legal force is not about giving someone permission to make the most of 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 U.S market but also from the rest of the world's markets. The idea of this happening might sound far-fetched and paranoid, but the law, they say, is like an Indian donkey: It can hit anyone with any leg at any time.
But mostly the donkey favors 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? U. S. law requires that the invention must deal with processes, machines, manufactures, compositions of matters, or the new uses of these items. It must be useful, novel and non-obvious. Plant patents, under which rice plants fall, according to U.S. 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 flavor of a region, a cultural icon.
Since the uses and unique attributes of Basmati have been known for centuries, the RiceTec case gives us a glimpse into the shape of the knowledge society to come. The creation of brand names, trademarks, value added-information and, not least, the ability to exploit information for commercial purposes through international treaties are destined to be backed by diplomacy, legal chicanery, foreign direct investment or even brute force.
This, however, is 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 been around since the Middle Age 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 with 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 on 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 civilizations, wherever they happen.
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The views expressed above are those of the author and are not necessarily those of AsiaMedia or the UCLA Asia Institute.
Date Posted: 5/10/2006
The Article by Mr. ND Batra goes beyond thr mere fact that a particular thing has been recognised as a GI. Rather teh article explores as how First World countries are suiting their needs as and when comfortable to them.
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