Bittersweet status

The recent registration granted by the Geographical Indications (G.I.) Registry in Chennai for the famous Tirupati laddu, produced by the Tirumala Tirupati Devasthanams (TTD), has stirred up a controversy within intellectual property circles.

A G.I. registration for a product denotes that it originates from a particular place of production that has a reputation for certain characteristics attributable to that place. It is distinguished from a trademark, which is used by an enterprise in relation to goods or services so as to distinguish them from others. Well-known examples of G.I. include Darjeeling tea, Kanjeevaram silk and Benaras silk.

The expectations of quality from these products stem from the favourable reputation they have acquired over time from their long-standing connection with the region or the natural advantages of the region (such as soil quality and climatic conditions) or a combination of both. A G.I. such as Darjeeling tea, for instance, signifies that the tea owes its special qualities to its geographical origin, which in this case includes the elevation of the tea gardens, moisture, soil quality, exposure to sunlight and other climatically and geologically contingent aspects.

Before 1999, India did not have a law governing geographical indications of goods that could adequately protect the interests of their producers. The law grants stakeholders rights to prevent misuse of geographical indications, protect consumers from deception, add to the economic prosperity of the producers of these goods and promote goods bearing Indian geographical indications in the export market.

Under Article 24.9 in the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), countries are not obliged to extend protection unless a geographical indication is protected in the country of its origin.

The Geographical Indications of Goods (Registration and Protection) Act, 1999, (GIGA) came into force only on September 15, 2003, when it was notified by the Central government. The Act has established the institutional machinery for the registration and protection of G.Is. Since 2003, the Registry, established in Chennai, has gathered momentum and registered several products.

The TTDs application is the first of its kind, as never before has a religious trust managing temple affairs sought G.I. status for its product, which is manufactured and distributed within the temple precincts and is linked to the beliefs of people. The TTDs application and the statement of case available on the website of G.I. Registry (Go to https://iprindia.nic.in/girindia/; then click Journal 28 and go to page 38) therefore deserve close scrutiny in order to determine whether the granting of G.I. status to Tirupati laddus is in accordance with law, and whether the objectives of the TTD in seeking the G.I. status are in conformity with those of the statute.

In its application, the TTD said the Sri Vari laddu, popularly called Tirupati laddu, is offered as prasadam to people who worship Venkateswara, the deity at the Sri Vari Temple at Tirumala Hills, Tirupati, Andhra Pradesh.

The size and flavour, it said, are the laddus typical characteristics. The laddus are not produced anywhere in the world and are very unique in terms of quality, reputation and other characteristics which go into its making. Being a food item, it derives its sanctity, reputation and uniqueness from its being offered as naivedyam to the Lord. The laddu gets reputation not from its taste alone, but from its sanctity, the application states. It also gave the details of the process involved in the making of the laddu.

The laddus are made in two sizes, with the small ones weighing between 170 and 180 grams and the big ones weighing between 700 and 720 grams.

The application said that to get the laddus one has to visit Tirumala and that they cannot be obtained by any other means. The laddus are made in kitchens, known in local parlance as pottus. The preparatory process undergoes many quality checks to ensure the taste and size of the laddu.

At present, the laddus are made in the main pottu, called Srivari pottu, where about 130 workers produce about one lakh laddus a day. There is also an additional pottu with about 60 contract workers, who make only the small laddu. A total of about 1.25 lakh laddus are prepared every day. The price of a small laddu is Rs.25 while that of a big one is Rs.100. According to the TTDs statement of case, on an average 70,000 people visit the temple every day.

The food and water testing laboratory at Tirumala takes one laddu from every batch of 2,000 and analyses it for weight, specified quantity of cashew nuts and other adjuncts, and the moisture content. Only if these parameters are correct are the laddus sent to the temple as offerings and then distributed as prasadam.

Only a few laddus are offered before the main idol in the sanctum sanctorum. After puja, they are taken back to the pottu and mixed with the fried boondhi already mixed with adjuncts, which are then made into laddus. This is done so that at least a small fraction of the prasadam laddu gets mixed with the other laddus. All the laddus so made in the pottu are offered before Vakkula Devi, mother of the main deity, and then sent to the godown where they are stored before distribution. This process, the application states, explains how the uniqueness of the laddus stems from their sanctity.

There can be no dispute with the TTD that the laddus enjoy a reputation mainly because of their association with the temple and the place. One would also tend to agree with the TTD that the taste and aroma of the laddu are attributable to the use of the best quality of raw materials, to the prescribed proportion in which the raw materials are used and to the skill, acquired through experience, of the cooks involved in the various stages.

The TTD has revealed that the Central Food Technological Research Institute (CFTRI), Mysore, has prescribed guidelines for the preparation of the sugar syrup, and that these guidelines and precautions are followed scrupulously in making the laddus.

While the TTDs claims with regard to uniqueness are indeed convincing, these are not sufficient to attract a G.I. registration.

According to experts, the dual objectives of the registration and protection of G.Is. are to protect the community rights of stakeholders and to prevent the consumer from getting deceived or confused by fakes or substandard products. The TTDs application satisfies the second objective but not the first. In the prescribed application, the TTD has mentioned only TTD against the column on the list of association of persons/producers/organisation/authority.

Section 2(n) of the Act defines a registered proprietor, in relation to a geographical indication, as any association of persons or of producer or any organisation for the time being entered in the register as proprietor of the geographical indication. Section 11 (1) dealing with the application for registration makes it clearer: Under this provision, any association of persons 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, who are desirous of registering a geographical indication in relation to such goods shall apply in writing to the Registrar.

Rule 32(5) of the G.I. of Goods (Registration and Protection) Rules, 2002, requires that a statement containing particulars of the producers of the concerned goods proposed to be registered be submitted for registration. Rule 32(6) (a) requires that the applicant submit an affidavit as to how the applicant claims to represent the interest of the association of persons or producers. Rule 32(6) (f) requires the full name and address of the association of persons or organisation or authority representing the interest of the producers of the goods.

These provisions make it clear that the G.I. registration is meant only for a community of producers and not for a single entity such as the TTD, whose monopoly over the production of laddus is obvious.

Said one observer: Unlike Colombian coffee or Darjeeling tea, there are no producers who make these laddus and bring it to the temple to be distributed and who eventually get a share of the colossal profits that the TTD is making. On the contrary, the TTD is the producer and the only beneficiary. The laddus are made by workers of the temple, who are paid salaries by the TTD, and by contract workers hired by the TTD for the purpose. It is tempting to term G.I. as the poor mans I.P. (intellectual property) in India because most of the stakeholders of G.Is are farmers, artisans and craftsmen belonging to the lower economic strata and, ideally, the benefits of G.I. registrations must trickle down to them. If instead of the TTD a community of skilled cooks in and around Tirupati makes these laddus, and supplies them, after due quality checks, for distribution to pilgrims visiting Tirupati, then the registration as G.I. may be warranted.

Experts in I.P. are, therefore, worried that the granting of G.I. status to Tirupati laddus militates against the very spirit of G.I. protection, which is aimed at protecting, preserving and promoting collective community rights as opposed to private monopoly rights. They point out that permitting such registrations can lead to a situation where a community or private enterprise carrying on a monopolistic business can get a G.I. for its product if it can demonstrate that it is the only one manufacturing or producing the product and that this product has unique features.

Subodh Kumar of the Andhra Pradesh Technology Development and Promotion Centre, who had a major role in drafting the TTDs application and statement of case before the G.I. Registry, said that Section 2 (k) (iii) of the GIGA defines producer as any person who makes or manufactures the goods, and that under Section 2(n) of the GIGA, any organisation could be the proprietor of the G.I. In other words, according to him, the GIGA protects the G.I. of a single producer, such as the TTD, as well as a community of producers, if there is any.

Some I.P. experts expressed surprise that the TTD did not consider seeking protection under the Trade Marks Act, 1999, which according to them was a better alternative. According to them, Tirupati, as the geographical name, has acquired enough secondary meaning to qualify for registration as a trademark in respect of laddus under the Trade Marks Act, 1999, if the objective of the TTD is only to prevent the sale of fake laddus to pilgrims.

However, as Subodh Kumar told Frontline, prevention of the sale of fake laddus is only the minuscule purpose being pursued by the TTD, whereas the G.I. serves its holistic purposes, which include legal/global recognition for Tirupatis cultural heritage.

While trademark helps an enterprise to pursue trade objectives that are tangible, the G.I. helps an organisation aim at intangibles, as he put it.

Elaborating, he said, the G.I. would enable the TTD to gain world recognition and attract more devotees to the shrine. Asked whether the objective of enacting the GIGA was not something else, he said once the Registry granted it, it was left to the applicant to decide how to use the G.I.

Subodh Kumars explanation in the absence of the TTDs own clarification of its intangible purpose in seeking G.I. status has given rise to misgivings that the TTD may be pursuing non-secular purposes by exploiting the infirmities in a secular law such as the GIGA.

On February 23, the then Minister of State for Commerce Jairam Ramesh (now Minister for Environment and Forests), while explaining the need for greater sensitisation on G.Is, told the Rajya Sabha that the lack of understanding had led to people filing applications for articles such as Tirupati laddu, among others.

Observers of I.P., therefore, suggest that the G.I. Registry must review suo motu its decision to grant G.I. status to Tirupati laddu.