Strengthening
the basmati case
By Satyendra Pratap Singh
There are
conflicting reports on the "success" of
the Indian Government in protecting Basmati from
patent piracy. There may be a better chance of
protecting Basmati if the issue is taken as one
concerning trademark infringement rather than as
one about usurpation of patent rights. The report
recently released by the panel on the "US
Omnibus Appropriations Act of 1998" carries
certain arguments and observations that could
help India take the Basmati issue to the Dispute
Settlement Body (DSB) of the World Trade
Organisation on the basic of trademark
infringement.
The dispute
between the US and the European Comminutes (EC)
was the consequence of the denial of trademark
registration to a company called Havana Club
Holdings. The company was denied the "Havana
Club" trademark for the rum it sold in the
US, as the trademark of a company said to have
been confiscated by the Cuban Government was
involved.
The Omnibus
Appropriations Act of 1998 stipulates that
trademarks can be used only with the approval of
the "original owners" - that is, those
who owned the trademarks before their
confiscation. While the confiscation angle is
understandable, given that the US still has
sanctions imposed on Cuba, we should focus on the
trademark aspects of the dispute to protect
Basmati.
One should ask the
question whether the "original-owner"
clause stipulated by the US Act should not also
be applicable to Indian farmers, who have been
cultivating Basmti rice for hundreds of years. In
contrast, the trademark Jasmati was registered in
the US on November 30, 1993, and Kasmati on June
25, 1996. Article 23 of the Trade Related Aspects
of Intellectual Property Rights (Trips) Agreement
protects wines such as champagne to the extent
that a comparable product grown elsewhere cannot
be described as being of the same
"kind", "type" or
"style".
On the other hand,
the US Patent and Trademark Office (USPTO) has
deemed the rice lines of the Texas-based Rice-Tec
Inc. as superior to Basmati. While the WTO
Agreement provides additional protection to the
original owners to wines and spirits, the
original owners of Basmati rice appear to be
underprotected. One of the arguments of the
European Community related to Section Two of the
US Trademark Act. The USPTO, under this Section,
can refuse registration to trademarks that are
considered immoral, deceptive and scandalous.
Relating this
argument of the EC to the Basmati issue, the
question arises whether the USPTO erred in
certifying the rice lines of Rice-Tec, including
BAS 867, RT 1117 and RT 1121. The rice line BAS
867, in particular, appears to be deceptive in
nature. This combination of letters and numbers
on a packet of rice on an American supermarket
shelf has the potential to confuse, if not
deceive, the average consumer. Such a
"deception" is also not allowed under a
US legislation called the Lanham Act, which
allows affected parties to prevent the use of a
trade name that is used in a manner likely to
cause confusion or deception. Paris Convention
1967.
The Paris
Convention, with origins in the 1980s, is
concerned with the protection of industrial
property on matters ranging from patents to
trademarks to appellations of origin. The
convention, to which both the US and India are
signatories, not only encompasses industry proper
but also agricultural industries and natural
products, such as wines, grains, fruit, flowers,
flour, and so on. Basmati rice, being a grain,
gets protection under the Paris Convention. The
Paris Convention also makes clear mention of
trademarks that can confuse when they imitate
existing and well-known trademarks, whether they
are of industrial or agricultural products.
There are
provisions in the Convention that allow countries
to refuse or cancel the registration of a
trademark if it is a reproduction, imitation of
translation of a will-known mark. The Kashmiti or
Jashmiti trademarks, which are indicated as
"live" in the US trademark registry,
violate the spirit of the Paris Convention. The
use of BAS 867 as a trademark of a rice line can
fall into the category of an imitation that
causes confusion among consumes.
Interestingly, the
world "Mati" means, "eye" in
Greek, and there is a US registration for this
trademark. However, there is no conflict of
interest as the registration has been given to a
New Mexico company in the retail jewellery
business.
Another
observation made before the panel hearing the
Omnibus Appropriations dispute was about the US'
practice of conferring trademark ownership on the
basis of use. This system of ownership rights is
also applicable to trademarks that have been in
use outside the US. This aspect of US' law must
be viewed in the context of the Basmati
trademark, which has been used in India, in one
form or the other, for a number of years.
Thus, the
registration of Jasmati in 1993 and Kasmati in
1996 does not seem to have the required legal
sanctity if the qualification for trademarks
ownership is based on prior usage.
The various
aspects discussed during the course of the
dispute, such as those relating to "original
owners" of the trademark, "prior
use" of the trademark, and the stipulation
that trademarks must not imitate, confuse and
deceive, should strengthen the Basmati case,
India's position will also be fortified by the
finding of the Dispute panel that the Omanibus
Appropriation Act of 1998 prevents owners,
original or otherwise, from having an equal
opportunity in US courts.
Therefore, there
is a strong case for the Indian Government to
take the Basmati issue either to the DSB or US
courts in the event of RiceTec Inc. producing and
marketing rice with trademarks that are identical
or similar to Basmati. INAV
Threat
of nuclear terrorism
By Satyabrata Rai
Chowdhuri
The head of the
International Atomic Energy Agency says that the
ruthlessness of the September 11 attacks has
alerted the world to the potential of nuclear
terrorism making it far more likely that
terrorists could target nuclear facilities,
nuclear material and radioactive sources
worldwide.
Experts from
around the world met at the IAEA at an
International symposium in Vienna from October 29
to November 2 to focus the importance of nuclear
safeguards, verification, security and above all
the issue of combating nuclear terrorism.
"The
willingness of terrorists to sacrifice their
lives to achieve their evil aims creates a new
dimension in the fight against terrorism. An
unconventional threat requires an unconventional
response, and the whole world needs to join
together and take responsibility for the security
of nuclear material, because radiation knows no
frontiers," said Mohamed ElBaradei, IAEA
Director General, whose Agency sets world
standards for nuclear safety and security.
The IAEA, the UN
nuclear watchdog agency based in Vienna, helps
around the world to prevent, intercept and
respond to terrorist acts and other nuclear
safety and security incidents. It is the only
international response system in place that would
be in a position to immediately react to assist
countries in case of a radiological emergency
caused by a nuclear terrorist attack.
According to the
IAEA, since 1993, there have been 175 cases of
trafficking in nuclear material and 201 cases of
trafficking in other radioactive sources.
However, only 18 of these cases have actually
involved small amounts of highly enriched uranium
or plutonium, the material needed to produce a
nuclear bomb. IAEA experts judge the quantities
involved to be insufficient to construct a
nuclear explosive device.
"However, any
such materials being in illicit commerce and
conceivably accessible to terrorist groups is
deeply troubling," says ElBaradei.
There has been a
six-fold increase in nuclear material in peaceful
programmes worldwide since 1970. According to
IAEA figures, there are 438 nuclear power
reactors; 651 research reactors; and 250 fuel
cycle plants around the world, including uranium
mills and plants that convert, enrich, store and
reprocess nuclear material. Additionally, tens of
thousands of radiation sources are used in
medicine, industry, agriculture and research.
Although the level
of security at nuclear facilities is generally
considered to be very high, security of medical
and industrial radiation sources is disturbingly
weak in some countries. "The controls on
nuclear material and radioactive sources are
uneven," says E1Baradei. weak security link
and loose, nuclear material in any country is a
potential threat to the entire world. Although
terrorists have not yet used a nuclear weapon,
reports that some terrorist groups, particularly
Al- Qaeda, have attempted to acquire or have
already nuclear material is a case of great
concern.
IAEA experts have
evaluated the risks for nuclear terrorism in the
following three categories: nuclear facilities;
nuclear material and radioactive sources. These
experts believe the primary risk associated with
nuclear facilities would involve the theft or
diversion of nuclear material from the facility,
or a physical attack or act of sabotage designed
to cause an uncontrolled release of
radio-activity to the surrounding environment.
Prom its
inception, the nuclear industry has been keenly
aware of the dangers of nuclear material falling
into terrorists hands. At all levels-State
and international- there is a complex
infrastructure at work to ensure nuclear material
is accounted for, safeguarded from diversion, and
protected from theft and sabotage. Most nuclear
facilities are protected by well-trained security
forces and are extremely robust, designed to
withstand earthquakes, tornado-force winds, and
accidental crashes of small aircraft. Although it
is not automatic that any attack would result in
a release of radioactivity, there are however
many industrial facilities which are not properly
hardened to withstand natural calamities or acts
of war.
The extent of
damage that could be caused by the international
crash of a large, fully fuelled jetliner into a
nuclear reactor or other nuclear facilities is
just a matter of conjecture. Nuclear facility
designs vary from country to country. So studies
will have to take specific plant designs into
account. After September 11, everyone has
realised that nuclear facilities -like dams,
refineries, chemical production facilities or
skyscrapers- have their vulnerabilities. There is
no sanctuary anymore, no safety zone.
In non-nuclear
weapon States, the IAEA carries out
international safeguards and the verification
tool entrusted to the IAEA in the 1970 Treaty on
the Non-Proliferation of Nuclear Weapons (NPT),
play an important role in reducing the risk that
terrorists could acquire nuclear material without
detection.
The nuclear
weapons programmes in the five big Powers as well
as any that may exist in India, Pakistan and
Israel, the three non-NPT countries, are not
under the purview of IAEA safeguards. it is hoped
that these countries are urgently reviewing the
safety and security of their nuclear facilities.
"There have
been two nuclear shocks to the world already- the
Chernobyl accident and the IAEAs discovery
of Iraqs clandestine nuclear weapons
programme," says ElBaradei, lit will be
vital we do all in our power to prevent a third
and that is the reason why the IAEA plans to
significantly expand its advisory services and
help States upgrade protection of their nuclear
materials. IR IAEA experts are concerned that
terrorists could develop a crude radiological
dispersal device using radioactive sources
commonly used in every day life. The number of
radioactive sources around the world is vast:
those used in radiotherapy alone are in the order
of tens of thousands. Many more are used in
industry, for example to check for welding errors
or cracks in buildings, pipelines and other
structures. They are also used for the
preservation of food. In fact, there is a large
number of unwanted radioactive sources, many of
them abandoned, others being simply
"orphaned" of any regulatory control.
Such a weapon,
sometimes referred as a "dirty bomb,"
could be made by shrouding conventional
explosives around a source containing radioactive
material, although handling the nuclear material
could well be deadly. And contamination even in
small quantities could have major psychological
and economic effects. The accidental
contamination of GolAcnia, a major city in
Brazi1, with a medical radiation source
exemplifies the potential for a terrorist group
to wreck havoc on an urban centre.
Today, we are
dealing with a totally new equation since 11
September. These terrorists demonstrated before
our eyes their determination to achieve their
ends. The deadliness of handling intensely
radioactive material can no longer be seen as an
effective deterrent.
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