ESRC Report [English]

8/2/2019 ESRC Report [English]

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ESRC PROJECTON GIs AND FENI

Dwijen Rangnekar

Geographical Indications and Localisation:

A Case Study of Feni


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Project TeamResearch Advisors

Fr. Rom ald DSOuzAFounder Director, Goa Institute of Management, India

Octavio ESPINOSADirector, Legislative and Legal Advice Division, World Intellectual PropertyOrganisation, Switzerland

Jorge Larson GuERRAComisin Nacional Para el Conocimiento y Uso de la Biodiversidad (Conabio),

Mexico

T.C. JAMESDirector, Department of Industrial Policy and Promotion, Government of India

S.K. SOAMSenior Scientist, National Academy of Agricultural Research Management, India

David VIVAS-EuGuIDeputy Programmes Director, International Centre for Trade and SustainableDevelopment, Switzerland

Sarah J. WHATMOREProfessor of Environment and Public Policy, Oxford University Centre for theEnvironment, UK

Research Assistant: Vidyaranya Chakravarthy NAMBALLA , PhD student, Schoolof Law, University of Warwick

Collaborating Institution: Institute for Research and Development ( Shodh), theteam is led by Pranab MUKHOPADHYAY with researchers S. MAuRYA and S. MOuRYA . Further information: http://www.shodh-research.org/

Research Mentor: Jan Aart SCHOLTE , Professorial Research Fellow, CSGR,University of Warwick

Principal Investigator: Dwijen RANGNEKAR , Research Councils UK Fellow andAssistant Professor, CSGR & School of Law, University of Warwick

Research F nding

The research project is funded by the Economic and Social Research Council (in the UK) through a competitively secured grant under the First GrantsScheme (RES-061-23-0119). An independent organisation,the ESRC is a non-departmental public body principallyfunded through the Science Budget of the UK Government.All ESRC research awards are made in open competition,subject to transparent peer assessment at the outset andevaluation upon completion. More information athttp://www.esrc.ac.uk/

www.warwick.ac.uk/go/feni


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CSGR REPORT 2009 3

Chapter 1: Registration of a geographical indication for Feni 041:1 Success and Accomplishment of the Feni Geographical Indication 061:2 Indias Interest in Geographical Indications 081:3 The Protection through a Geographical Indication 091:4 Overview 10

Chapter 2: Theoretical backgro nd for the st dy of geographical indications 112:1 Approaching a Study of Geographical Indications 122:2 Geographical Indications seen as Clubs 152:3 The Localised Specialisation of Geographical Indications 18

Chapter 3: Establishing the Feni Cl b 203:1 Feni as a Collective Heritage 213:2 Feni-Distilling 23 3:3 The Making of the Geographical Indication for Feni 29 3:4 Analysing the Geographical Indication 30

Chapter 4: Geographical indications and localisation of Feni 334:1 The Feni Sector 344:2 The Geography of Cashew Liquor 364:3 The Supply Routes of Feni 374:4 Speci cations for Localising Feni 42

Chapter 5: Concl sion 465:1 Theoretical Approaches for a Study of Geographical Indications 475:2 Mobilising Resources for a GI 485:3 The Geographical Indication for Feni 495:4 Geographical Indications and the Supply Routes of Feni 49

Appendices 51

Contents

Boxes, g res and tablesBox 1: Feni, Fennim and Fenny: What am I really drinking? 05Box 2: Goa 06

Box 3: A Primer on Geographical Indications 06Box 4: The Goa Cashew Feni Distillers and Bottlers

Association 07Box 5: Kasmati: Free-riding on Basmati 08Box 6: Geographical Indications: Patents No More 09Box 7: Maori Mark and the Protection of Traditional Knowledge

and Cultural Expressions 13Box 8: Parma Ham: Maintaining the Protected Status 14Box 9: The Club of Grana Padano 15Box 10: Fairtrade: Setting standards and Monitoring

Compliance 16Box 11: GI Supply Chains and the Case of Cooperative

Competition 17Box 12: Scotch Whisky: Continuous Reinvention or Loss of

Tradition? 18Box 13: Childhood Aromas: Stepping Stones to Feni-Distilling 22Box 14: The Borders of Champagne: A Cocktail of Cooperation

and Accommodation 23

Box 15: Grau: Measuring the Strength of Feni 28Fig 1: Distribution of Grau 28Box 16: The GI-de nition of Feni 30

Box 17: Coconut: The Most Fruitful Tree 31Box 18: Excise Licences for Feni 34Tab 1: The Feni Sector (2005-06) 35Tab 2: The Cashew Supply Economy 35Tab 3: Volumes and Excise Revenue 36Tab 4: Geography of Cashew Cultivation and Distilling 36Fig 2: Main Talukas: Liquor Retailing, Population and

Tourist Traf c 37Fig 3: Feni Supply Routes: Short and Direct 38Fig 4: Feni Supply Routes: Long and Bottled 40Tab 5: Tourist Flow and Liquor Licences 41Box 19: Feni as a Tourist Trap 41

Box 20: Feni Cocktails 42Box 21: Uncorking the Tequila Story 42Box 22: The Search for Scotch: A History of De nitions 43Box 23: Differentiation within the GI-Umbrella 45


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1THE UNIVERSITY OF WARWICK4

Chapter 1Registration of a geographical indication for Feni

On 27th February 2009 Feni was successfully registered as aGeographical Indication (GI) in India having been rst submittedin December 2007. 1 The success of taking the application throughthe GI-registration process was greatly heralded, with localnewspapers reporting with pride that this was Goas rst GI. Italso happened to be the rst alcohol to be registered as a GI inIndia and from India.


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CSGR REPORT 2009 5

The GI, though in the name of Feni, deals with cajuFeni

(cashew Feni) which is an alcohol distilled from the fermented juice of the apple of the cajutree and is made with a particularpot-still through a series of distillations.

Box 1: Feni, Fennim and Fenny: What am I really drinking?Feni is written variously as Feni, Fenny, Fennim and Fenni.And these different spellings are widely noted and tend to beculturally acceptable. Fennim is re ective of its linguistic originsin Konkani and many of those interviewed during this researchnarrated its links with Fenn, meaning froth some suggestingthat a good Feni generates froth when poured, while others pointto the froth that forms when the juice of cashew apples ferments.

The term Feni is used for two different liquors: one that isdistilled from coconut toddy and the other from the fermented

juice of cashew apples. Often a drinker will ask for a caju at atavern without necessarily adding Feni to clarify the order. Barsand tavernas also list the two as Feni, distinguishing them byadding caju or coconut in front. In Konkani, coconut Feni is alsocalled Md. The two drinks are distinctly different. Patronageand preferences differ; it would be foolhardy to take sides in thedebate between the virtues of the two drinks or the choice of spelling.

Caju Feni is distilled from the fermented juice of cashewapples. The rst distillation produces a liquor that is called Urrack which is also consumed as a mild alcoholic beverage. Urrackmixed with the fermented juice is then distilled for a second timeto produce a stronger liquor called Cazulo. The third distillation

uses a mix of the Cazulo and fermented juice to produce Feni.There are cultural norms about the proportions to be mixedat each stage, norms concerning the distilling apparatus, theharvesting of the cashew apples, and about the utensils used forcollecting, storing and transporting Feni. These are discussed indetail in Chapter 3 with reference to the GI-application.

The GI-application draws attention to two spellings, Feni and

Fenny, and proceeds to adopt Feni as its preferred spelling. Also,it only considers caju, remaining acutely silent on coconut Feni,which is addressed in Chapter 3. Throughout the report Feni isused to refer to caju Feni.

Cashew was introduced to the Malabar Coast by the Portuguesefrom Brazil in the 16th century and subsequently got introducedinto Goa then a colony of the Portuguese (Box 2: Goa). Thecashew trees fruit is the kidney-shaped cashew nut, and whatis called the cashew apple is a false fruit, botanically a (swollen)pedicel (Photograph 1: Cashew Apple). With high levels of sugar(6.7-10.5%) and its characteristic rapid fermentation it makes agood distilling agent. However, distilling of the cashew appleinto Feni appears to be the exclusive cultural repertoire of Goaand some a cionado drinkers would argue more speci callyNorth Goa.

Photo 1: the cashew apple with its kidney-shaped nut dangling below


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THE UNIVERSITY OF WARWICK6

Box 2: GoaComprising 3702 square kilometres along the western coast of India and south of Mumbai, Goa has three distinct geographies:a coastal area towards the west, the mountains of the WesternGhats (locally called the Sahyadri Range) along its easternperimeter and undulating hills and plateaus in its middle. After451 years of Portuguese colonial rule, Goa was liberated in 1961and joined the Indian Union. It was granted statehood in 1987 andits native language, Konkani, was also recognised as its of ciallanguage.

The State is divided into two administrative zones of NorthGoa and South Goa. These are further divided into eleven talukas,sub-district administrative zones: in North Goa they are Bardez,Bicholim, Pernem, Ponda, Sattari and Tiswadi, and in South Goathey are Canacona, Mormugoa, Quepem, Salcette and Sanguem.

The cashew apple is used to produce undistilled wine, vinegar, jam, fresh juice and other products in Goa and elsewhere.The fresh juice of cashew apples, called Nirqin Goa, is highlyrefreshing and energising. In parts of West Africa and Brazil,the fresh juice is fermented into cashew wine. In some parts of South America, local inhabitants regard the apple, rather thanthe nut kernel, as a delicacy. In Mozambique, once the largestproducer of cashew nuts, there is a mixed history of cashewapple wine and a distilled liquor. But, distilling the cashewapple into a liquor called Feni is clearly a Goan contributionto the wealth of liquors. This is all the more remarkable

when placed in terms of the global cultivation of cashew: Goaaccounts for only 1.4% of the global cashew cultivation area ashare that has fallen from over 2% in the 1990s.

With Feni receiving its GI-registration, will we see a seriesof indigenous liquors following suit? There is a robust traditionof alcohol-distilling in India using various fruits, owers

(e.g. Mahua), and grains (e.g. Raksifrom either millet or rice)

among other ingredients as distilling agents. While alcoholis a common cultural artefact across societies and time witha variety of deep ritualistic meanings, the origins of distillingalcohol tend to remain mysterious. Distilling is a few, butimportant, steps beyond a mere knowledge of fermentation,requiring an understanding of the process of collecting andcondensing the vapours and that the concentration of alcoholincreases with each distillation. It is generally believed thatthe Greeks of Alexandria knew of distilling, and the Arabsused distilling to obtain essential oils. This history proceedsto suggest that distillation of alcohol developed in WesternEurope in the 12th century. However, based on archaeologicalevidence from present-day North-West Frontier Province, ithas been suggested that the art of distilling alcohol might haveoriginated there and is Indias gift to the world. So, Feni mightitself herald a wider move of recognition of this heritage andtradition. For that matter, with Feni as Goas rst GI, it mightalso generate wider interest amongst other Goan producers toseek GIs for their products. Examples that are being discussedinclude the Mankuradmango, the Taleigaobrinjal and the jackfruit papad from Canacona, and the Rasbalibanana. Lessonsfrom the experience of Feni would be useful for distillers of other indigenous liquors and for producers of these potentialGI-products.

1:1 S ccess and Accomplishment of the Feni GeographicalIndication

The success of seeing the GI-application through the registrationprocess is itself worthy of attention. It demonstrated asubstantial e ort in assembling the information for a GI-application, coordinating the various interests and groupsconcerned with Feni and then responding to the examinationprocess of the GI Registry (Box 3: A Primer on GIs). Soon afterthe enactment of the GI Act in India in 1999, there were callsin Goa for Feni to be registered as a GI. A number of concernsof the Feni sector were noted, including its excise status of country liquor that prohibited the transportation and sale of Feni across Goas borders. Mention was also made of the threatof caju-distilling in neighbouring states along the border of Goa.Threats of misappropriation of Feni were a theme that recurredthroughout the period of research. The GI, it was hoped, wouldensure that Feni remained rightfully and exclusively Goan ahope often expressed, along with an expectation of a future of plenty where Feni would replicate the global success of Tequilafrom Mexico. Such a hope was re ected in a story in one of Indias leading English-language dailies, the Hindustan Times,under the title, Will Feni be the new Tequila?

Box 3: A Primer on Geographical IndicationsIndia passed the Geographical Indications of Goods (Registration andProtection) Act in 1999 as part of its obligations to the Agreementon Trade-Related Aspects of Intellectual Property Rights (TRIPS).The de nition for a GI in the Act is:an indication which identi essuch goods as agricultural goods, natural goods or manufactured

goods as originating, or manufactured in the territory of acountry, or a region or locality in that territory, where a givenquality, reputation or other characteristic of such goods isessentially attributable to its geographical origin and in casewhere such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods

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CSGR REPORT 2009 7

concerned takes place in such territory, region or locality, as the

case may be.

There are three key elements in the de nition: An indication must be able to mark out the particular goods.

This could be a symbol (e.g. the Taj Mahal) or a word (e.g.Darjeeling for tea), there being no requirement for theindication to be a direct geographical name of a place (e.g.consider Basmati).

The goods must possess some distinctive quality orcharacteristic or reputation.

These particular qualities are linked to the geographical region,re ecting a mix of environmental factors, human practice andcultural norms.

The application requires documentation to help establish thedistinctive qualities of the product in question and its link tothe demarcated geographical region. These are assessed by theGI Registry in Chennai. Establishing the following are key to theapplication process:

What is the indication to be protected and is there any symbolto be used on the protected products? Thus, there should be aclear expression of the indication and any logo or mark thatmight be associated with the indication.

What are the distinctive features of the product? Clearlyestablishing this helps later in distinguishing between thegenuine and the imitations.

What is the link between product and place? This is usuallyassessed through historical evidence which details the long-established cultural repertoire surrounding that product in theidenti ed place; thus, a mix of environmental factors and humanpractice. A map demarcating the designated area is also used.

Who is the applicant? Here the assessment is whether theapplicant represents the interests of producers associated withthe product and in the designated region.

Finally, there is a need for an inspection structure to ensurethat the products which will carry the protected indication doconsistently meet the standards of the speci cation.

Further information: GI Registry http://ipindia.nic.in/girindia/;see also Appendix 1 and 2.

Demonstrating its keen interest in GIs, the Government of India ran a series of meetings across the country to promoteand popularise the idea of GIs, with the hope that producergroups and associations would start looking at GIs as a meansof protecting their traditional and cultural products. In January2002, one of these meetings took place in Goa. Co-organised by

the Goa Chamber of Commerce and Industry and with variousGoa Government o cials, the meeting discussed the potentialuse of GIs in Goa and identi ed a range of possible products.Feni was nominated as the rst candidate product and thisalso led to cajubeing the adopted choice.

Over the next few years, the Government of Goa, especially

through the Development Commissioner JK Dadu and later

under the stewardship of the Department of Science andTechnology, pursued a GI-application for Feni. An informalcommittee involving journalists and archivists, agronomistsand scientists, and bottlers and distillers, was assembled.Details of the distilling process were scripted, its history wasresearched and collected, and chemical analysis was conductedand documented. In July 2006, the Goa Cashew Feni Distillersand Bottlers Association was registered and they became co-applicants of the GI-application with the Department of Scienceand Technology (BOX 4: The Feni Association). By March 2007 adraft of the application was ready. O cials from the GI Registrywere informally consulted and meetings in Goa continued todeliberate on the application. Eventually, in December 2007the application was submitted to the GI Registry in Chennai.Finally, in February 2009 it was registered marking asuccessful end to this process.

Box 4: The Goa Cashew Feni Distillers and BottlersAssociationA collective body to represent the interests of the sector andbe an applicant was required by Indias GI law. This led to theDevelopment Commissioner, JK Dadu, promoting the idea of anassociation involving some of those participating in the initialmeetings. The Goa Cashew Feni Distillers and Bottlers Association(hereinafter, the Feni Association) was registered as a society inGoa on 21st July 2006, with the following of ce-bearers:

President: Mr Mac Vaz Secretary: Mr Gurudatta D. Bhakta Vice President: Mr Tukuram Haldankar Treasurer: Mr Regan Henriques

One of the of ce-bearers narrated how discussions leading up tothe formation of the Feni Association consistently re ected theneed for collective action to protect Feni while overcoming thehurdle of being competitors in trade or comrades in competition.The Feni Association has a broad range of objectives, includingthe protection and promotion of the traditional skills of distilling,whilst also seeking to standardise the process. It seeks togenerate awareness within the sector of the need for hygiene andcleanliness. It aims to collect and disseminate information aboutthe sector, lobby the Government on behalf of the sector andpopularise Feni in Goa and elsewhere.

At the time of registration of the GI, the Feni Associationhas a slim register of members that includes those who areexclusively bottlers, distillers who have integrated into bottling,and large distillers. A broader and representative constituencyis a recognised challenge for the Feni Association. As one of theof ce-bearers explained, the fragmentation of the sector is ahurdle. While bottlers tend to be active all year round, distillersare seasonally active and move into other occupations during theoff-season, making them dif cult to mobilise.

Accompanying the celebration of this accomplishment was a

hint of caution, as expressed by the Vice President of the FeniAssociation, Tukuram Haldankar, in the Navhind Times: Thisis a very happy moment ... [though] there is a lot to be done.We have to get together with the government departmentsand discuss what measures have to be taken to standardise theproduct.


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This statement is evidence of the issues around the granting of

a GI, which can open up an array of activities to be undertaken.While it might not necessarily require standardisation, itwould require steps to develop governance systems, certi cationand monitoring. All those who use the GI, that is, distillers,bottlers and retailers, need to agree to some minimumstandards related to Feni while not excluding or marginalisingthe rich diversity and tradition of Feni-distilling.

The question is whether this balance has been achievedin the GI. Not surprisingly, questions have been raised on thenecessity of adding yet another layer of regulation and rules onFeni. At an early stage of this GI-registration e ort, VincentVaz, the proprietor of Madame Rosa Distillery, noted in theFinancial Express(21st September 2001) the paradox of seeking aGI when a key problem for the liquor was its excise classi cationthat prohibited its sale elsewhere in India: We are ghting anabsurd and sad situation wherein Feni is exported and sold allaround the globe, but most of the states within India do notallow it to be retailed. Other concerns noted by distillers duringthe eldwork included the annual bidding for licences andhow this is fragmented, with separate licences for extractingthe cashew juice, distilling the liquor and retailing it. Thisfragmentation of the process and the seasonality of distillingwere problems regularly mentioned. Bottlers, on the otherhand, have some regularity in their activity, which places themin a di erent position with respect to the sector.

It was therefore no surprise that questions and hesitationdogged the local debate on a GI, necessitating the Government

of Goa to take an active role in mobilising the e ort. Thisnecessity was not merely a matter of timing relating to the FeniAssociation being formally established in July 2006. There werewider issues behind this e ort to secure a GI.

1:2 Indias Interest in Geographical IndicationsThe interest in GIs in Goa is related to the national agenda onGIs and further, the position held by India on GIs at the WorldTrade Organisation (WTO), which can be traced back to Indiasposition on intellectual property rights (IPRs) in the 1990s.Along with a number of other Member countries from theGlobal South and Eastern Europe, India had been canvassing forstronger protection for GIs in the Agreement on Trade-RelatedAspects of Intellectual Property Rights (TRIPS Agreement). TheEuropean Community was another interested party for strongerGI protection.

The experience with products like Basmati rice andDarjeeling tea has made the Government and others active inthe domestic and international arena. In the case of Basmati, aUS company, RiceTec Inc., patented a rice variety in the US andclaimed that it had Basmati-like properties. In addition, it alsoregistered trademarks, Kasmati and Texmati, that manyargued would confuse consumers about its rice. Furthermore,the packaging of Kasmati referred to Indian Style Basmatiand carried a caricature image of the Taj Mahal (Box 5:Kasmati). There was little doubting the attempt to present theAmerican rice as Basmati from India. While the Government

of India successfully challenged the patent in the US and thetrademarks in the UK its attempts to do so were hampered by alack of domestic protection for Basmati.

Box 5: Kasmati: Free-riding on Basmati

RiceTec Inc. is an American company that was granted a patentfor a rice variety with claims for Basmati-like properties in 1997.The Government of India successfullychallenged the patent in US courts. Thecompany also registered trademarks,Kasmati and Texmati, in a number of countries. Both trademarks seek toallude to Basmati.

The Kasmati trademark is moretelling as the packaging of the riceincludes a caricature of the Taj Mahal anduses the phrase Indian-Style Basmati.The Government of India challengedthese in the UK, arguing that they wereseeking to build an allusion between theproduct and South Asia to deliberatelycapitalise on the reputation of Basmati. In both instances RiceTecInc. did not contest and surrendered their trademarks.

The story around Darjeeling is equally worrying. Issuesconcerning the GI were part of a wider set of problems thatincluded the situation of labour in a plantation economy, thesluggish investments by estate owners, the consolidation of economic power at the auction, blending and retailing end of the supply chain and the entry of imitation teas as Darjeeling.With between 70% and 80% of production being exported Darjeeling tea grosses annual exports of about US$30 million

the implications for the GI are serious. Trade journals andpopular media note that almost 80% of the global trade inDarjeeling tea is counterfeit an estimate that the Tea Board of India disputes.

The Tea Board of India took a number of steps that includedacquiring a GI, setting up a compulsory certi cation scheme,and enforcing its rights through domestic and overseas courts.Well before the GI-frenzy, it designed a logo for Darjeeling. TheGI, the rst to be granted in India, provides adetailed set of speci cations. For instance,the demarcated territory of the GI is notthe whole of Darjeeling, but particularareas, which indicates a greaterimportance of geography and culturalpractice. Further, it is also a requirementthat the tea originates in a certi edtea garden and is processed within thedesignated region. The compulsory certi cationprocess has helped in monitoring the supply chain withinIndia. For the overseas market, it has undertaken consultations

with buyers and blending companiesand also sought to use the courts wherenecessary. Promising examples of theuse of the Darjeeling logo along withorganic and fair trade certi cationmarks exist.

Beyond these examples of export-

oriented products, a range of concernsexist with respect to a variety of productsthat are consumed either locally ornationally. These products might behandicrafts (e.g. Kondapalli bommalu,wooden toys from Andhra Pradesh),

Photo 2: Kasmati rice

Photo 3: Darjeeling tea


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garments and textiles (e.g. the KulluShawl from Himachal

Pradesh or Kutch embroidery from Gujarat), fruits (e.g. theCoorg orange from Karnataka, Malda LakshmanbhogMango fromWest Bengal) or vegetables (e.g. Naga Mirch from Nagaland),cereals (e.g. Pokkalirice from Kerala), spices (e.g. Malabar pepper from Kerala), or even a laddu (e.g. Tirupathiladdu fromKarnataka) 2. As supply chains become more extended and theconsumers more distant (either culturally or geographically),the ability to discern and identify the genuine from thecounterfeit gets more di cult. In many cases, this is alsobecause the qualities and attributes of a product are not directlyobservable. In the case of some products, the raw materialsmay be substituted by inferior or fake ones. Or, not all theproduction rules may be properly observed. For example, inthe case of Banarsi sarees, there have been stories of the useof imported Chinese silk which, according to some reports,contributes to over 50% of the silk. Weavers are also troubledby the continuing introduction of power looms which producecheap imitations, thus further depressing the retail price of sarees and the piece-price for sarees they receive.

While GIs cannot address all the ills of such practices theycan be part of a larger policy initiative. In promoting the idea of GIs, the Government considers that the deep cultural heritageand biodiversity of the country could generate a large portfolioof GI-products. The hope is that protecting this cultural heritageand biodiversity through GIs would translate into improvedlivelihood. Domestic protection through GIs, the Governmentfeels, would make it easier to ght cases like that of Basmati in

the future. The Government has therefore taken to popularisingthe idea of GIs by hosting workshops and meetings withproducer groups across the country.

1:3 The Protection thro gh a Geographical IndicationSo how does all this translate into the daily lives of producers?Are the years of e ort, political mobilisation and socialcommitment for a Feni-GI worth it? How will this a ect andimprove the conditions of distillers and bottlers, or, for thatmatter, consumers? These were some of the queries thatconstantly arose during the eldwork. While the report dealswith some of these in more detail in Chapters 3 and 4, a fewwords of clari cation at this stage are warranted. Two keyissues are addressed here: misconceptions concerning GIs andclari cation of the protection o ered through GIs.

A primary misconception is that GIs are patents, and somenews reports do suggest that Feni has been patented. (Box 6:Geographical Indications: Patents No More). This is totallywrong. There are many di erences between GIs and patents,two of which are:

A GI is a type of intellectual property right that tends to beheld by collective bodies representing groups of producers,such as the Feni Association, whereas patents are privaterights that are held by individuals, companies andcorporations.

The knowledge associated with a GI remains available foranyone to use whereas the knowledge associated with apatent is the property of the patent-holder. Permission fromthe owner has to be taken before using patented knowledge.

Box 6: Geographical Indications: Patents No More

The misconception that GIs are patents or that there is nosigni cant difference between the two is often conveyed bynewspapers, as evidenced by the following examples:

Goas Feni producers want to patent brew, Raju Nayak, IndianExpress, 30th August 2007: ... the popular brew is under threat andit can be patented by someone abroad if the Indian governmentdoes not move fast enough. [...] industry sources said Fenidistillation would receive a boost if it received a patent.

Goas Feni to get a patent, PTI, Tribune, 5th January 2008:Last week, a team from the Geographical Indication Registry(GIR) visited Goa at the invitation of the All Goa Feni Bottlersand Distillers Association (AGFBDA) and the state government toascertain their claims for a patent.

Feni gets GI status, Christina Viegas, Navhind Times, 24thMarch 2009: The procuring of the GI certi cate for the Goan spiritwould perhaps take care of a lot of loose talk by ignorant peoplewho constantly preferred to remain spoilsports and lamentedthat the GI status for Feni was stuck in the rut, while the localscan revel with news of the patenting of their spirit as this uniquepotent spirit will now stand out in terms of greater positioning,not just in the country, but all over the globe.

A second misconception is that the grant of a GI hasinternational and global coverage. This is untrue. The GI forFeni is only valid in India. This is common for most IPRs; therights are valid in the countries where they have been granted.Moreover, there is no automatic protection in other countries.

For the present at least, the multilateral register of GIs thatexists at the WTO has not been introduced. On the other hand,automatic protection might occur through bilateral treaties thatIndia has with other countries if provisions for GIs exist. So,the Feni Association will need to develop a strategy of applyingfor GIs in other countries. Naturally, this would make senseonly in those countries where a potential market exists orwhere a potential competitor liquor exists. With GI-protectionat home, the Feni Association is at least in a stronger positionto seek protection in other countries. For instance, if theBasmati-like situation discussed above were to arise, then theFeni Association would be in a strong position to make a case forunfair competition.

Closely following these two misconceptions, it is importantto understand that the protection of a GI is largely directedat the indication (Feni in this case) and to the speci cationssubmitted by the Feni Association (discussed in Chapter 3). Asthe particular knowledge documented in the application is notprotected, anybody else could attempt to replicate the distillingprocess. Thus, a company located elsewhere might decide tocopy this distilling process and make liquor from the fermented juice of cashew apples. The Feni Association would have nolegal recourse to stop this, but they could prohibit the use of theindication Feni by the company.

There are numerous examples of imitative liquors emergingfrom outside the area of a registered GI. The prestige andpopularity of a GI is itself an invitation to competitors to

enter the market with as close a substitute to the GI-product.Champagnes prestige and popularity has seen the entryof Cava, a Spanish sparkling white wine, which copies theChampagne method, however, they have to name their productdi erently. Tequila which is made from the Blue Agave inMexico has seen the entry of a South African competitor that


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is made from the Blue Agave itself and called Agava. There

have been news reports, including one in the Heraldin June2009, of plans to allow and license the distilling of liquor fromcashew apples in Maharashtra (particularly in the districts of Sindhudurg and Ratnagiri). As explained above, the practicecannot be stopped by the Feni Association, however, distillers inMaharashtra would not be able to call it Feni.

Broadly speaking, Indian law o ers the following protection(see Appendix 2):

Firstly, the owners of a GI (such as the Feni Association andthe Department of Science and Technology) and authorisedusers (those licensed by the Feni Association), can seekremedy from the courts if the GI is infringed by others. Theauthorised users also have the exclusive right to use the GI inrelation to the goods that have been identi ed subject to thespeci cations submitted.

The GI is infringed when it is used by a non-authorised userto either indicate or suggest that the goods originate in thatgeographical area in a manner that misleads consumers.

Similarly, the GI is infringed when it is used in a manner thatis considered unfair competition or passing o .

Finally, there are provisions for additional protection; amysterious category that has not been clearly de ned in thelegislation.

The crux of the protection o ered by GIs hinges on theindication and the speci cations submitted. Also, theprotection is directed to the GI-owner and to authorised users.This raises concerns amongst a broad spectrum of interestedparties. For instance, do distillers, bottlers and retailers nowhave to get authorised by the Feni Association to continuedoing their activities? Also, would those who distil the liquorin ways that di er from the speci cations submitted by theFeni Association be excluded from using the indication?Worryingly, the legal answer to the question is yes, thoughthere are countervailing provisions. Similarly, what happensto the distillers of coconut Feni? Will they have to stop callingtheir liquor Feni now that the name has been appropriated bythe cajugroup? Or, can they use Feni with coconut added todistinguish it from caju? If so, would this diminish the futureprosperity hoped for by the Feni Association?

Consumers are also concerned with this development.For some, such as the a cionado, they have their assured andhighly-treasured distiller from whom they directly organisetheir stock and it matters little if some association somewherehas decided to authorise the liquor as authentic Feni. Theyknow their liquor. However, the intervention of this new arbiterof authenticity (and quality) may disturb some long-establishedsocial relations around drinking. The report concerns itself withsome of these questions.

1:4 Overview

The report proceeds with Chapter 2 providing a generaltheoretical background to the study and drawing out a way tostudy GIs. This starts with the growing interest in promotingGIs as a development policy and the suggestion that a lot of hopeand expectation has been generated. Two key ideas are usedin studying the case of Feni. The rst interest is in the processthrough which a consensus has been reached in terms of thespeci cations that were submitted with the GI-application.Recalling the phrase of one of the Feni Associations o ce-bearers, comrades in competition, the aim is to consider howcompetitors remain comrades. The second idea relates to thespeci cations themselves. Recognising the history behind a GI,the speci cations are e ectively the legal translation of a long-established cultural repertoire associated with Feni.

Chapter 3 focuses on the process of preparing, submittingand successfully registering the GI. Having intervieweda number of individuals involved in the process, thishistory is brought together to demonstrate this successfulaccomplishment. The chapter also reviews the speci cationsthat have been submitted, discussing these in terms of variouscultural practices associated with Feni-distilling. This will helpto identify possible amendments to the GI for Feni.

Chapter 4 focuses on some of the expectations and hopesassociated with GIs. Based on eldwork material, a numberof supply routes of Feni are identi ed. There are short anddirect supply routes where the consumer and distiller are veryproximate and personal. On the other hand, there are other

supply routes that are longer and more distant, in which theconsumer is hardly connected with the distiller. Here, bottledbrands prevail. The possible implications of the GI in each of these supply routes are discussed, thus suggesting how the GImay localise control.

Finally, Chapter 5 concludes by highlighting some of the keyresearch ndings and restating the recommendations.

Footnotes

1. The Report is written with very few references; those, interested inadditional information and further theoretical details are directed to Appendix 3.

2. All of these have either already been registered as GIs in India or are

under review at the GI Registry.


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2Chapter 2CSGR REPORT 2009 11

Theoretical background for the studyof geographical indications

This chapter presents a number of approaches to the study of GIswhich raise particular questions about them and help identifyproblems and solutions. 3 The protection of a cultural object thathas a long history of practice and consumption raises questionssuch as whether the cultural practice is homogenous do alldistillers adopt similar materials, technologies and practices?


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If there are di erences, how should the legal de nition of the

GI handle this di erence? Similarly, if there have been changesin the practice of Feni-distilling, is it necessarily requiredthat a particular tradition of distilling is only noted in the GI-registration?

However, the growing interest and popularity of GIs willrst be considered, focusing on their wide popularity in a

number of multilateral forums. This will help identify somefeatures that resonate with the protection of traditionalknowledge and cultural expressions but will also be areminder that there is much hope and expectation invested inintroducing GIs.

Two key approaches to the study of GIs are emphasised inthe chapter. Firstly, the idea of clubs; collective bodies whichpose problems for GIs, particularly in terms of rule-makingand the politics of maintaining a club. Secondly, the idearelating to the cultural repertoire that lies at the heart of theGI. This localised specialisation re ects a history and tradition,thus focuses on a broader spectrum of values than merely themarket.

2:1 Approaching a St dy of Geographical IndicationsThe Growing Popularity of Geographical IndicationsGIs bring together an entirely di erent set of interests comparedwith other IPRs. At the WTO, rather than witnessing the usualNorth-South divide as is the case with patents, GIs nd manySouthern Members (including India) demanding strongerprotection. It is equally surprising that countries from the

North do not agree with each other on GIs, which is most unliketheir consensus on patents and copyright. Thus, the EuropeanCommunity is keen on stronger protection and a multilateralGI-register while countries like Australia, Canada and theUS are opposed to it. At the heart of these di erences are thepotential implications of GIs for the domestic economy and

global trade, and the cultural values associated with GIs.

Some of these potential in uences of GIs have translatedinto a growing appreciation for them in a number of multilateral forums. For example, at the World IntellectualProperty Organisation (WIPO) in discussions concerningtraditional knowledge and folklore there have been favourableviews on the positive protection o ered by GIs compared withany other IPRs. Consider the following quote from Anil Guptasreport:

Traditional Knowledge, as well as biological and genetic resourcesproduced and processed in a characteristic manner typical of a givenregion, and embodied in local life styles and linked with culture, could beprotected through a distinctive sign, such as a geographical indication.

These discussions at the WIPO also highlight the possibilityof GIs dovetailing with other policies and IPRs to protecttraditional knowledge and cultural expressions. For example,a handicraft could have its technical content protected as atechnical idea, the cultural value of the item protected as aform of folklore and cultural expression, and nally the itemitself protected with its distinctive features as a GI.

At the Food and Agriculture Organisation, GIs have foundfavour in discussions about genetic resources that have beenneglected by mainstream funding bodies. Thus, in a study by Jorge Larson we can read the following:

GIs can be useful in developing and consolidating a di erentiated

geographical identity and a reputation, building quality systems andproviding governance to value chains based on local biological resourcesand traditional and innovative knowledge and practices.

However, Larson also cautions that much of the success of GIsis dependent on an institutional mechanism and governance


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systems that enable the participation of all groups and

individuals. The United Nations Development Programmeexpresses some of these wider concerns for human capabilities,participation and equity. Swarnim Wagle draws attention totwo of the notable human development dimensions of GIs:

Empowerment: As the rules of a GI are scripted by thecommunity, it empowers them and enhances their humandevelopment.

Productivity and Premium: Successful branding and pricingcould o er the GI-product a price premium in the market;thus, a sense of commercial equity.

Marks and the Protection of Traditional KnowledgeThe general agreement on GIs is testimony to certain features,as outlined by David Downes and Sarah Laird:

... geographical indications and trademarks have the potential to respond tosome of these concerns more e ectively than do other intellectual propertyrights. Rights to control trademarks and geographical indications can bemaintained in perpetuity. They do not confer a monopoly right over the useof certain information, but simply limit the class of people who can use acertain symbol.

To understand this view, the following features of GIs areimportant:

The Nature of Protection is Consistent with Cultural andCustomary Practices: In most countries, GIs are held bycollective bodies that represent individual producers whoare located across the entire supply chain of the product.A GI cannot be licensed out to producers based outside theidenti ed region. In essence, the GI seeks to stipulate therules of production and the location of production, whichtend to sit quite comfortably with the cultural and customaryuses of products and indications.

Knowledge Remains in the Public Domain: The protectionunder a GI does not put a monopoly on the knowledge relatedto the product. So producers in the region who do not observethe rules, or producers located elsewhere can continue usingthe knowledge; however, they are prohibited from directly orindirectly using the protected indication.

Rights can (potentially) be held in Perpetuity: As long asthe essential basis of protection, the tripartite relationshipbetween product-quality-indication, is maintained, the lawwould continue to protect the indication. Usefully, most GIlaws allow for revisions to the speci cations, thus permittingthe evolution and adaptation of cultural practices. Naturally,any such revisions must not diminish the distinctiveness of the GI and its relationship to the region.

While all this sounds interesting, the question remains

as to how this policy-speak translates into reality at theground level. There are a number of examples of the useof GIs, certi cation marks and trademarks that have beendeveloped to protect holders of traditional knowledge andcultural expressions. A notable case is the Maori Mark in NewZealand (Box 7: Maori Mark). It is here that the United Nations

Conference on Trade and Development (UNCTAD) has made a

signi cant contribution as well. For example, in India UNCTADhas been working with the Government on GIs through anumber of channels, which include regional workshops,support of artisan groups and a large-scale study of the potentialof GIs, in a six-year project which facilitated the registrationprocess of 21 GIs.

Box 7: Maori Mark and the Protection of TraditionalKnowledge and C lt ral ExpressionsThe Maori Mark is a useful example of using trademarks tocreatively protect a broad range of interests concerning the Maoripeoples. This was an initiative of Maori artists with the nationalarts body of New Zealand which developed through a series of meetings across the country with Maori artists, performers,and peoples. One of the objectivesof using a trademark was to retaincontrol over their cultural heritage,their knowledge, imagery and designs,and maintain its integrity through anincreasingly commercialised world.

The mark is itself re ective of thisparticipative and consultative process. Designed by a team of senior Maori artists led by master carver Dr Pakaariki Harrison,the mark represents the genealogy lines of past, present andfuture generations. Launched in February 2008, the mark isregistered to Creative New Zealand. However, the guardian of the mark is Te Waka Toi, the Maori arts board of Creative New

Zealand, which retains control in administering the mark.Among the different elements of the rules, two are notable:

The mark is for the use of individuals and groups of artists whoare of Maori descent. However, there are other marks whichare for groups of artists that are mainly Maori and another,the Maori co-production mark, used for collaborative venturesbetween Maori and non-Maori peoples.

The qualifying works must be distinguishable as a work of Maori art or craft being a work which comprises an implicitor explicit reference to something Maori. The Te Waka Toi asguardian decides on approved categories of art form.

These rules are also complemented with a labelling system thatmust be displayed with each certi ed work under the MaoriMark. The label carries a number that corresponds to the artistwho made the product.

Further information: http://www.toiiho.com/

Social Movements of Consumption and Marks IndicatingConditions of OriginIt will be useful here to re ect on how development theory andsocial movements provide links through GIs with communitiesand consumers. A starting point is to recognise that GIs have avery long and deep history.

Even while GIs have only recently been de ned and

introduced in TRIPS, antecedents are found in the long historyof trade and marketing practices. A variety of indicators havebeen used to mark products as a way of identifying theirgeographical origin and suggesting a certain quality andreputation. Examples include the use of seals and marks inthe 12th century by Egyptians to indicate the vintage and


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provenance of wine. Later practices in Europe show evidence

of guilds and their seals of quality to mark products. Manyof our everyday products have names that suggest historicalprovenance, such as china for porcelain, and co ee isindicative of its geographical origins in the Ka a region of Ethiopia. However, the use of geographical terms with someproducts, such as kiwi-fruit and Bermuda shorts, are suggestiveof a geography of production and trade routes rather than ageography of origin.

The speci c TRIPS de nition of GIs as discussed earlierrequires a tripartite relationship between product, distinctivequalities and the place of origin (see Box 3: Primer onGeographical Indications, Chapter 1). To recall, a GI is muchmore than the designation of origin of a product such as Made inIndia. In essence, it relates to the practice where iconic images,such as the Taj Mahal from India or the Pyramids from Egypt,or other markers are used to signify the origin of a product witha particular distinctive quality. However, sometimes use of geographical designations are not true. The law considers thesepractices as unfair competition as they mislead the consumersand free-ride on the reputation of marks. In a recent decisionat the European Court of Justicerestoring Feta as a GI, the courtsagreed with the European Commissions argument that addingtext or drawings with a marked Greek connotation means it isdeliberately suggested and sought as part of a sales strategy thatcapitalises on the reputation of the original product [which]creates a real risk of consumer confusion.

One of the changes in the dynamics of consumption that

is being increasingly noted is an interest in the conditionsof origin of products. In some instances, it might beenvironmental concerns, while in other cases it might belabour conditions, or a question of social justice, ethics oranimal welfare. These various concerns have led to a rangeof socially-generated labels mapping out a range of marksindicating conditions of origin. The range includes Fair Tradeand the various standards of organic certi cation, but alsoincludes Rugmark for carpets made without child labourand Kimberley Process for con ict-free diamonds. Withdi erent emphases and values, the growth of these marksre ects concerns over justice. The no sweatshop movement,for example, calls for unionised labour and fair workingconditions. The movement against child labour and poorworking conditions has repeatedly dogged Nik, including thecase of footballs from Cambodia and Pakistan.

GIs nd themselves related to these socially-generatedmarks indicating conditions of origin but there are signi cantdi erences. Unlike most of the other marks, GIs are scripted bythe community of producers. It is they who are the authors of the rules and thus have greater in uence in shaping the mark.This feature of GIs empowers communities to de ne theirproducts and resonates with those consumers seeking productswith a particular and distinct place of origin. In this way,GI-products also relate to ethics concerning recognition andredistribution. In such networks of consumption, the productis no longer just any bulk commodity (tea), nor is it generally a

brand of a multinational (e.g. Tata Tea); rather, it is a distinctplace-based tea (e.g. Darjeeling).An additional feature of GIs is how they stand in contrast

to the growing global consolidation in the agrofood sector. Adominant motif of this sector is its incessant drive for a exibleand mobile production base, thus constantly sourcing items

from new sites with lower costs of production. In this manner,

products are delocalised and made placeless. In the literaturethis is often presented as the McDonaldisation of food where food is entirely robbed of any distinct characteristics of its place of origin. GIs however are distinct in terms of placeand a GI cannot be licensed outside its place of origin whichnecessarily means that they stand in contrast to the dominantlogic of global agrofood. Both for manufacturing rms andretailers, trading in a GI-product requires it to be sourced fromthe (certi ed) producers: if Tata Tea desires to sell tea labelledas Darjeeling it must necessarily get it from tea gardens inDarjeeling that are certi ed by the Tea Board of India (theowners of the Darjeeling GI).

This tension can be seen in several examples where attemptshave been made to capitalise on the reputation of a GI, as in theexample of Basmati rice noted in Chapter 1. There is also theexample of Parma Ham from Italy which is organised underthe Consorzio del Prosciutti di Parma a consortium of producersthat was established in 1963 (Box 8: Parma Ham). In 1997 itbegan proceedings against Asda, a UK retailer that is owned byWal-Mart, the worlds largest retailer. Asda was selling hammarketed as Genuine Italian Parma Ham and noted on itspackaging that All authentic Asda continental meats are madeby traditional methods to guarantee their authentic avour andquality and Produced in Italy, packed in the UK for Asda StoresLimited.

BOX 8: Parma Ham Maintaining the Protected Stat s

The origins of dry-curing ham in the Parma region have beentraced through a number of historical sources including Cato theCensor, in 100 BC. Archaeological evidence, such as that of saltedpig leg-bones, has also been used to establish the historical andgeographical link.

In 1963, the Consortium of Parma Ham was established by23 producers and has since expanded to include over 170 hamproducers and many more through the supply chain. In 1970, theItalian government introduced domestic regulation to protectParma Ham as a designation of origin and gave the Consortiumthe power to supervise production and marketing. TheConsortiums ducal crown is appliedby Consortium-approved personneland af xed at the end of the curingperiod on hams that successfully passthe series of inspection procedures.Following the harmonisation of designation of origin laws in Europe,Parma Ham was also protected as aProtected Designation of Origin in 1996.

Parma Ham is made only from the rear haunches of the pig,and only four ingredients are used: Italian pigs, salt, air and time.The complete speci cations include details about the pig breeds,their area of rearing, their feed and details on slaughtering andprocessing. Some of these are:

Pigs of designated breeds and feed according to the

speci cations can be reared in certain geographical areas anddistricts in Italy.

The attributes of fresh legs used in the production of ParmaHam are de ned in terms of fat consistency, fat layer and othercomponents.


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All processing plants and slicing and packaging plants must

be located within the territory of Parma and all raw materialprocessing phases must take place within this territory.

By de nition then, Parma Ham can only be sold in sliced andpackaged form if these processes take place in the designatedregions of Parma.

Further details: http://www.prosciuttodiparma.com

The ham that Asda had used was sourced via an intermediary,Hygrade Foods Ltd., from a certi ed member of the Consortium.Hygrade then industrially sliced and packed the ham in the UKfor Asda. One of the rules of production for Parma Ham is thatit must be sliced and packaged in front of the consumer for hamthat is marketed in slices. As the ham Asda was selling did notadhere to this rule, the judges had to decide whether it shouldbe prohibited from using the GI. The Consortiums argumentwas that slicing and packaging are important steps of theproduction process that also permits the producer to control oneof the ways in which the product appears on the market [soas to] safeguard the quality and authenticity of the product, andconsequently the reputation. The case, pitting a Consortium of ham producers against the worlds largest retailer, began at localcourts in the UK and went all the way up to the European Courtof Justice. Eventually in 2003 the European Court of Justice agreedin favour of the Consortium, emphasising that the applicablerules protect those entitled to use them against improper useof those designations by third parties seeking to pro t from

the reputation which they have acquired. They are intended toguarantee that the product bearing them comes from a speci edgeographical area and displays certain particular characteristics.

GIs and Changes in Development TheoryThese examples demonstrate the wider context expressinga variety of moral concerns, and ethics of recognitionand redistribution. A number of scholars have spoken of endogenous development, a grassroots-based practice usinglocal resources and capabilities as the primary element of development. These writings recognise social movements of indigenous peoples to reverse long histories of dispossessionand marginalisation, with other elements seeking to use localresources and cultural products as the core motive forces fordevelopment. These movements also seek to retrieve historyand restore a sense of prestige in locality. Even though thismight sound like standing in opposition to contemporaryglobalisation, many scholars note how there is a use of globalinstitutions and external materials and technologies inachieving these local aspirations. Characteristically termed glocal, these are seen as ways of using external and globalelements to defend and preserve local ways of living.

In many ways, GIs can relate to these theories and practicesof development. Firstly, the products in question are very muchelements of the local way of living and this is detailed later inthis chapter. The documentation of the speci cations of a GI-product can also be seen as an experience of retrieving history

and restoring prestige in locality. The examples of GI case lawnoted earlier are testimony to how this documentation canbe used in struggles of recognition. Lastly, the contemporaryappreciation of GIs in various multilateral forums is itself evidence of the glocal properties of the GI movement.

Finally, on the appreciation of GIs in a wider context, it

is useful to note some words of caution. The rst relates to

the process of rule-making. A GI requires documentation of the production rules, thus the need for the relevant group of producers in the region and across the supply chain to arriveat some consensus. All this raises questions of participation,debate, disagreement, cooperation and all the messiness of politics and economics of who is involved, who is excluded, andwho is leading the process of rule-making. This is very pertinentfor GI-products because they already have a long history andcultural practice to their production, and the opportunity of a GIopens up many possibilities.

The second concern follows from the issue of rule-makingand relates to the rules themselves. Is there an instrumentallogic that these new rules will impose on GIs, thus, losing therichness of the cultural diversity? How will the rich and diversecultural practices associated with GIs be translated into theGI-rules? Questions like these are central to the rule-makingrequirement of GIs. The new rules for the GI-product will be acompromise between the di erent interests of the producersand societies involved in and excluded from the process.

2:2 Geographical Indications seen as Cl bsThe Intuitive Appeal of ClubsThere is an intuitive appeal to the idea of clubs in discussingGIs, which comes from the manner in which GIs are treatedby law where a club-like situation is created. The club ideaemerges through the rules of production that are submitted aspart of the registration procedures. A landmark judgement in

the European Court of Justice in 2001 concerned whether therules of production for Grana Padano cheese provided the GI-holders with an exclusive right to the GI (Box 9: Club of GranaPadano). That is, could other producers use the GI withoutobserving all the rules of production? More remarkable inthis case was the fact that the rule in dispute was the gratingand packaging of the cheese in the demarcated region. Thecourt concluded that the rules of production submitted in theregistration process

[determine] both the extent of the obligations to be complied with for the purposes of using the PDO [Protected Designation of Origin] and, aa corollary, the extent of the right protected against third parties by thee ect of registration of the PDO, which lays down at Community level rules set out or referred to in the speci cation.

In other words, the courts ruling generates the basis for theGI-club. On the one hand, it obliges the producers to behavelike members of a club by observing the rules that they havesubmitted as part of the registration procedures. On the otherhand, those who fail to adhere to any of these rules are excludedfrom the club and disallowed from using the name of the GI-club.

Box 9: The Cl b of Grana PadanoThe Consorzio per la Tutela del Formaggio Grana Padano (theConsortium of Grana Padano Producers) was founded in 1954

and presently has over 200 rms across producers, maturers andretailers. Initially regulated under Italian decree in October 1955,Grana Padano was made a Protected Designation of Origin whenEuropean laws were harmonised in 1996.

Grana Padano is a semi-fat hard cheese which is cooked andripened slowly. It is produced by curdling cows milk, and the


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cattle are reared on a feed of green and dried

forages. There are various speci cations on themilking of the cows, the cheese productionprocess, and how the cheese is matured.The speci cations were amended in 1991 toinclude the grated form of the cheese. The newregulation required that cheese be grated inthe area of production and that the packagingis done immediately with no processing andwith no addition of substances to alter theconservation and the original organoleptic characteristics.

The issue for the courts was whether a cheese which didntadhere to these new speci cations could continue to be soldusing the Grana Padano name and logo. In essence, do all thespeci cations have to be adhered to in order to be in the GI-club?

Further information: http://www.granapadano.com/ing/index.htm

Another way in which the club-like status of GIs is establishedoccurs from treatment of the protected indications and marksby courts and trademark o ces. For example, when courtsrefuse to register geographically-descriptive marks becausethey infringe a protected GI, the courts are actually protectingthe borders of a GI-club. Consider the dispute around theHighland Chief trademark in India that was led by DyerMeakin Breweries for a malted whisky and contained thevisual imagery of a (Scottish) man dressed in tartan. TheScotch Whisky Association opposed the trademark registration,

arguing that the term Highland Chief used for a whiskygenerates the impression that it originates in Scotland animpression that is further enforced by the visual imagery.The Delhi High Court agreed with this argument and ruledthat the Highland Chief mark was a false trade description,and cancelled the trademark. By refusing to register certaintrademarks or cancelling their registration, the courts protectthe rights of the GI-holders on the grounds that such marksare confusing and misleading to consumers and free-rideon the reputation of the GI. A similar argument was used bythe Government of India when it successfully challenged theRiceTec trademarks in the UK where the term Basmati wasused, as discussed in Chapter 1.

While the Grana Padano case focuses on whether rulesof production are adhered to or not; the Highland Chief casesuggests that the borders of a GI-club can extend to includeclosely associated terms and pictorial representation. Thefollowing section provides a discussion of the idea of clubs andexplains important features of this idea for a study of GIs whichwill be relevant to the making of the Feni-club addressed inChapter 3.

Examples and Features of ClubsClubs are distinguished by two main features. First, allmembers of the club can enjoy it without depriving eachother. Second, the club is restricted to members only. Scholars,Todd Sandler and John Tschihart, de ne a club as a voluntary

group of individuals who derive mutual bene t from sharingone or more of the following: production costs, the memberscharacteristics or a good characterised by excludable bene ts.

There are numerous examples of clubs which include notonly recreation facilities but also collective organisations likethe Indian Performing Rights Society, the World Trade Organisation

and standard-setting and certifying organisations such as the

Fairtrade Labelling Organisation International(Box 10: Fairtrade).

Box 10: Fairtrade: Setting Standards and MonitoringComplianceFairtrade is one among many socially-generated appellations thatseek to promote particular principles of fair price, greater equityin global trade channels, and sustainable and environmentally-sound development. There have been a number of differentde nitions of fairtrade and various networks and groups haveproposed their own marks indicating conditions of origin.Among these, the Fairtrade Labelling Organisation International(FLO), established in 1997, has developeda set of fairtrade standards and owns thewidely recognised Fairtrade mark.

FLO consists of 24 national fairtradelabelling initiatives (mainly in the North)and three producer networks (mainlyin the South). The standards for theFairtrade certi cation mark are set byFLO in consultation with its membersand stakeholders and others thatinclude development policy workers andacademics. This is a certi cation for aproduct and not an organisation. The standards are a mix of generic fairtrade principles and product-speci c requirements.They include a fair price that at least covers the cost of sustainable production and also includes a fair trade premium

that is investable in local projects.FLO, recognising the need for independent and transparent

certi cation, in 2004 separated itself into two organisations: FLOand FLO-CERT. While the standards are set by FLO which alsoowns the certi cation mark, the standards are inspected, certi edand monitored by FLO-CERT which is an independent ISO-65accredited agency that offers Fairtrade certifying services in over70 countries.

This separation of standard-setting from monitoringcompliance has proved useful in promoting consumer trust andfaith in the products. The estimated retail value of Fairtradeproducts in 2008 was nearly 2.9 billion, an increase of 22% on theprevious year.

Further information: FLO http://www.fairtrade.net and FLO-Cert: http://www. o-cert.net/

There are particular properties and characteristics that arecommon to most clubs, such as voluntary membership, policiesfor sharing club resources, and monitoring mechanisms forexclusion. Private clubs are said to be characterised by voluntarymembership in that individuals choose to belong because theyanticipate some bene ts. However this should not be confusedwith those individuals who get excluded from the club apoint that will feature later on in this report. The next featureof clubs to consider is that of sharing. There is a need for someinstitutional mechanisms to share the club between membersso as to e ciently manage the shared resource and eliminate

problems of congestion. For example, a recreational club mighthave a rule on how many visits each member is allowed on aweekly or monthly basis.

A nal feature of clubs that brings together these twofeatures of voluntary membership and sharing is its featureof exclusion. For that matter, clubs exist through this ability


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to exclude non-members from their bene ts. Exclusion is

a di cult matter and requires the club to come up with anexclusion policy that needs three core elements:

Membership rules: Some minimum codes that qualify theindividuals membership to the club

Monitoring membership: Systems to verify and checkadherence to the membership rules

Policing membership: Closely related to monitoring, thisrequires systems for ensuring that non-members are excludedfrom the club

Some of these features of a club can be seen in the functioningof a GI-club like that of Champagne which is administeredby the Comit Interprofessionnel du Vin de Champagne(CIVC).Established in 1964, the CIVC evaluates and recommendsthe classi cation of the various communes included withinthe Champagne-club, it negotiates the price of grapes ateach harvest, it monitors the detailed rules of production forChampagne, and polices the use of the Champagne term,which even involves ghting legal cases elsewhere. To recallthe two cases noted at the start of this section; the Grana Padano case concerned the rules of production and the Highland Chief case concerned the use of the term of the GI-club. Both aredemonstrations of the monitoring and policing of the GI-club.

The detailed rules of Champagne production include

identi ed grape varieties, speci cations on the growing andharvesting of the grapes, and details on the initial fermentationand blending processes and storage termed mthodechampenoise. However, getting to establish these intricate rulesof production and delimitation of the territories of productionthat make the Champagne-club has not been easy, as re ectedin the struggles in the 20th century and those in recent years,which will be discussed in Chapter 3.

Studies of GI-clubs and also of collective organisationslike the FLO identify a number of important lessons. First, themaking of a club and maintaining its membership are di cultprocesses. This re ects the di culties in agreeing on club rulesand the e orts needed to monitor membership. Second, studiesdemonstrate that some clubs get characterised as having clubswithin clubs. This occurs when a set of members becomesincreasingly able to in uence the rules of membership andthe distribution of bene ts/sanctions. A nal lesson is that togenerate trust of consumers, clubs that certify standards shouldhave third-party monitoring and auditing of the standards (Box10: Fairtrade).

The Collective Dimensions of GIs as ClubsAnother dimension of clubs is the collective dimension, whichwill be discussed later in this section. It should be noted thatthe rules of production of a GI are the localised specialisation(seenext section) of a certain territory. Appreciating this social andcultural history reminds us that the product and its cultural

rules pre-exist the legal form of the GI. This raises questions asto the relationship between this social and cultural history andits subsequent legal form and if there is any di erence betweenthe cultural institutions of governance and the legal rules andmonitoring system.

Elinor Ostrom has done extensive work on the evolution

of institutions of collective action in governing locally-sharedenvironmental resources. The social processes of generatingthe rules for these allows individuals to cooperate in designinglocal rules. While giving individuals ownership of the rules,it is also the case that individuals tend to build a shared senseof commitment to the norms and conventions. According toOstrom, much of the motivation to cooperate emerges from asense of interdependence. This interdependence may be becausethe local environmental resource contributes to income, or itmay be the signi cance of the resource in a social and culturalsense. Either way, this generates a lattice of interdependence,which, as we will see, is relevant to the study of GIs.

However, this interdependence and collectivity and itspromise to act as a social glue should not mask the hurdlesin acting collectively giving GIs a peculiar characteristic of cooperative competition (Box 11: GI Supply Chains). Social,economic and political inequality in society will lead todi erent levels of participation in making the legal rules. Also,there is no reason to assume that everybody will share a similarappreciation of the historical legacy of a GI-product or haveidentical hopes for the future of the GI. These di erences willin uence the rule-making process. Studying the translationof cultural norms and conventions into legal rules will give aninsight into whose rules have come to matter in the case of Feni.

Box 11: GI S pply Chains and the Case of Cooperative

CompetitionGI-products from different producers are necessarily similar, aseach producer follows broadly identical production rules. In fact,it is this similarity, the localised specialisation, that gives theproduct its collective reputation a reputation that is shared byall members of the GI-club.

Individual producers generate a reputation for a certainquality amongst a group of faithful clientele. This reputationis linked to the localised specialisation and is limited by theshared and similar production rules. However, efforts to generateseparate reputations points to the complicated nature of competition in GI-products.

Individuals and rms in the supply chain are also economiccompetitors which occurs at two levels:

Horizontally at each production stage there is competitionfor a larger share of the proceeds of the nal retail sale. Forexample, this occurs between distillers and bottlers on the priceof Feni at the distilling stage, and similar issues arise at eachproduction stage.

Vertically at each production stage there is competition for ashare of the market at that production stage. Thus, retailerscompete with each other for a larger share of the retail marketof Feni. Similarly, distillers also compete with each other for alarger share of the market at that production stage.

Competition between producers in a GI-club must be restrainedby the overarching need to maintain the collective reputationof the GI because any deviation from the production rules maybene t the individual rm but impact on the collective reputationof the GI. This requirement for cooperation whilst maintainingsome competition is a particular feature of GI-products.


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2:3 The Localised Specialisation of Geographical Indications

This section discusses the second organising idea of thisstudy: the localised specialisation that lies at the heart of aGI. Localised specialisation is a re ection of the locality andcultural history of the GI. Recognising these aspects of GIsis important in two respects. First, it shows how GIs mightbe a useful way of achieving equity and recognition in trade.Second, it is also a reminder of the di culties in achievingconsensus on the practices of the past, especially whenconfronted with the tempting prospect of a lucrative future.

Agriculture and Localised SpecialisationsClosely linked to the idea of clubs is the way in whichanthropologists have come to study the inherent diversity inagriculture and handicrafts. The diversity is not only a matterof the di erent technologies used, the diversity of plant speciesand varieties, or the variation in soil composition and culturalpractices of farming. It is also re ected in the way that farmingcontributes to a way of life and how local resources of labour,materials and technology provide a distinct pattern of farming.Interestingly, while this historical exchange of plants, farmingpractices and technology does generate homogeneity it alsoreinvigorates diversity and localised specialisation.

This localised specialisation can be seen in many di erentways. For instance, the cashew tree originates in Brazil and wastransported by the Portuguese to its various colonies, arrivingin Goa in the 16th century. However, while the apple of thecashew tree is used to produce various fresh and fermented

drinks in these locations, it is only in Goa that liquor calledFeni is distilled. This is all the more remarkable when placedin the context of the global cultivation of cashew, where Goaaccounts for under 1% of the global area. In the case of barleythis localised specialisation is equally remarkable. Here,while the distilling of whisky from barley is not unique toScotland, the use of local resources (e.g. peat, spring water)and imported materials (e.g. oak casks), and the responses tonew technologies and policies has given it a distinctness anddiversity (Box 12: Scotch Whisky).

Box 12: Scotch Whisky: Contin o s Reinvention or Loss of Tradition?The long history and continuing evolution of Scotch Whisky is agood example of the different pressures that a culturally-distinctproduct faces. It is also a useful reminder of the various interestsand opportunities that arise with new materials and technologiesand with markets and commercialisation. For some, Scotch haslost the battle and is no longer the spirit they knew; for others, itis an indication of a robust reinvention.

As with other liquors, Scotch stories are infused with thestruggle against the State and its attempts to tax and regulatedistilling and drinking. Similarly, there are classic stories of temperance and poetic expressions of its virtues. The early 19thcentury, which has been termed the heroic age of whisky, wasfull of this cat-and-mouse game between those keeping thesecret of whisky-distilling alive and those seeking to license

each and every pot-still. It was with the small operators,risking lives, where the art of distilling continued to ourish.The 1823 legislation which introduced legal distilling with amoderate licence fee is said to have enabled the practice to beindustrialised. For some, it also killed home-distilling by movingthe practice into the factory.

In terms of materials and technologies, the main

transformation occurred in the early part of the 19th century. In1828, Robert Stein invented a new form of continuous distilling.This invention allowed the distilling of whisky in a single batchwithout the need for the double-distillation characteristic of the pot-still. Aeneas Coffey an ex-Inspector General of Excise inIreland modi ed this invention and was granted a patent forhis still in 1832. A prototype was installed in the Dock Distillery,Dublin. The continuous and single-batch distilling of Coffeysstill made the process much more ef cient in terms of volume of spirit and the purity of the liquor. However, as it lacks the higheralcohols and other impurities of the pot-still whisky, it also lacksthe avour and distinct taste of malt whisky. Whether whiskyproduced in a Coffey still could also be considered Scotch hasbeen a matter of considerable debate.

However, the Coffey still did make its presence in the industryand also invigorated the practice of vatting. Vatting is themixing of single whiskies of the same distillery but belonging todifferent time periods of distilling, the purpose being to obtaina whisky of uniform character. From the 1850s onwards, pot-stillwhisky began being blended with grain-whisky made in theCoffey still. This blending enhanced the practice of vatting andalso emphasised the role of the master blender. And, with thiscame the ourishing development of blends and an increasingdifferentiation of markets, tastes and geography.

These features of localised specialisation are re ectionsof cultural practices and are constantly in ux, under the

in uence of local and external pressures, the introduction andassimilation of materials and technologies, and the changingvalues of the market either locally or globally.

The example of Scotch demonstrates the continuing tusslebetween localised specialisation and external pressures whichprovides opportunities for reinvigorating the specialisation.However, the reinvigoration depends on how external materialsand technologies are assimilated and used locally. Recognisingthis ux and change, many GI laws allow for revisions to theproducts rules of production. For example, in India, thereare possibilities to revise and alter a registered GI, which arediscussed later (see, Appendix 1).

Conventions of Place vs. the Opportunities of MarketsAnother way of seeing this tussle between localisedspecialisation and external factors is to view the issue fromthe side of the market and consumers, keeping in mind thatconsumers have di erent tastes, and markets have segments.Societies have a tendency to impose a moral hierarchy on thingswhich places restraints on their exchange and sale in markets.For instance, some objects are symbolically deemed to be sacredand are thus excluded from the market. Other restraints onexchanging goods in the market reveal how society gives socialand cultural meaning to things. For example, heirlooms andmemorabilia of national leaders and important personalitiesare considered sacred and prestigious thus making their salein markets morally unsuitable and outrageous. But herein is

a paradox. As things become more prestigious and sacred theyalso become more valuable: a highly sacred collectible that isalso worth a lot of money!

This built-in tension between morals and markets can alsobe seen in the case of GIs. GI-products are distinguished not onlyby their rules of production but also their location of production.


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This mix of rules and location means that GIs are also invested

with social and cultural meaning. More importantly, the mixof rules and location, which are the norms of good farming,establish restraints on production. The norms represent thelocally-agreed cultural and production rules which re ect avariety of social, cultural and ecological concerns related tothe product. For consumers, these norms give the product acertain meaning and an expectation of a certain quality, andproducers and consumers develop relationships around thesenorms and expectations. The procedures of documentation andtesting communicate some of these values between consumersand producers. For example, some producers may seekmodi cations to the norms to please certain consumers eitherin a local or distant market. Some consumers in culturally orgeographically distant markets might also express a need forrelaxing some norms as will be discussed in Chapter 3 withregard to Champagne. This presents opportunities to revisit thenorms and explore ways of maintaining the distinctness of aGI-product whilst also widening the cultural repertoire. Onceagain, the example of Scotch whisky warrants attention asdoes the case of Mezcal where there has been a proliferation of types of Scotch and Mescal within the umbrella of the GI-club.In essence, GI-products remain in perpetual ux between anumber of di erent values and interests.

To understand and explain this tussle between conventionsof place and the opportunities to market, it is useful to beginwith the idea that GIs are a cultural repertoire that has beenlocally stabilised. There is a historical dimension to GIs and

most national laws request documentation to demonstratethis historical link between the product, its repertoire and thegeographical location. But the historical past and heritage is aresource that can be given particular meaning by contemporaryinterests. Di erent social and economic interests seek to investmeaning into the past. Sometimes certain traditions thatappear or claim to be old are of remarkably recent vintage.This has led to talk of invented traditions that are actuallyinvented and formally instituted to establish continuity witha convenient and suitable historical past. These attempts maybe used to promote social cohesion, or to inculcate certainbeliefs in groups, or to de ne and set up groups of privilegeand status. However, as with other cultural rules, variousinvented traditions may be possible, but only certain ones arepermissible and this is where social and cultural norms play arole. Similarly, the opportunities that external materials andtechnologies or new markets might o er to a GI need to beculturally evaluated. Tempting as these opportunities are, somemay not be culturally permissible.

Footnote 3. References to the literature discussed here are provided in Appendix 3.


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3Chapter 3THE UNIVERSITY OF WARWICK20

Establishing the Feni Club

This chapter uses the interviews and meetings that took place aspart of the research to explore the cultural practices associatedwith Feni which helps to give an idea of the social setting of the localised specialisation. Various cultural norms, expressedby distillers and bottlers and also a cionados, already exist inthe oral traditions associated with distilling and drinking Feni.Hence, the task for the Feni Association was to engage with thiscultural and oral tradition to develop its rules rules that would

be legally backed and enforced by the GI Act.


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The chapter begins with an exploration of the social conditions

of Feni-distilling to become familiar with its deep culturalrepertoire. This is followed by an expanded discussion of thestages of the distilling process and the materials and techniquesused. The e orts to mobilise the Feni sector and organise theFeni GI-application are described, demonstrating the seriousand di cult task of getting a GI. The GI-speci cations, or therules of the Feni-club, are noted and examined in the context of the cultural practices associated with Feni. Finally a number of recommendations are suggested in terms of revising the rules of the Feni-club.

3:1 Feni as a Collective HeritageLike other liquors elsewhere, Feni is part of a wider social fabricinvolving customs, prohibitions and norms. Drinking is a socialactivity and rarely, if ever, is alcohol consumed in solitude.More than food, practices of drinking are said to contribute tosocial formation and cohesion as the amounts taken and thedrinking behaviour tend to be socially regulated. In some partsof India, drinking is frowned upon and considered repugnant.In others, it is not. Even ritualistically and religiously there aremarked di erences. Alcohol is used as libation in some sacredplaces and in others it would desecrate the space. The Codes of Manualso has its set of prescriptions, thus while it is okay forcertain castes to drink alcohol, the Brahmin should abstain.

In this way, the drinking of alcohol is a social marker. Wegroup ourselves according to where and with whom we tendto drink. For example, with the drinking of Feni: during the

period of Portuguese colonial rule, Feni would be availablein the taverna or licensed ale shop and that was wherethe public drinking of Feni occurred, which also suggested acertain social class and culture. Otherwise, many would justhave Feni at home and at certain social functions. As PercivalNoronha described, it was during the war years with the

shrinking availability of foreign liquor that Feni became more

publicly pervasive, and has since bene ted from a wider socialprojection.There are many other ways in which drinking and alcohol

establish a cultural and social mark. Many societies tend toapprove of drinking at particular times in the day say, at theend of the workday. Habitual drinking at other times would begreeted with a social frown. 4 Thus, the practice of employerstaking a drink with their workers at the end of a days workis quite common in many distilling and wine-making areas,and helps to ensure that workers dont feel the need to drinkfrom existing stock during the workday. This is certainly thecase with Feni where workers share a drink together with theiremployer at the end of the working day.

Many other dimensions of Feni-drinking emerged in theresearch, which are not explored further here, but includea range of medical remedies involving Feni such as rubbingFeni on the stomach to deal with gastric ail

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