Basmati and the wrong instrument problem: Why trademark law keeps failing India

When the Australian Federal Court rejected the Agricultural and Processed Food Products Export Development Authority's (APEDA’s) appeal on August 12, 2026, it did not make any ruling regarding the geographical nature, reputation, or origins of Basmati. Instead, it made a much narrower ruling about what Basmati cannot do, namely serve as a certification trademark.

The very definition of a certification trademark means it must distinguish the certified products of one trader from those of another trader. However, the Basmati certification mark was designed to do the opposite. The word itself refers to a particular type of rice that is grown, certified and sold in different countries. This does not say anything about ownership of Basmati.

This is what makes the link between Chennai, Canberra, Wellington and Brussels. India has been using the same basic argument for almost two decades now about the need for Basmati to get some form of legal protection as per its region of growth through two quite different forms of law that pose different queries and provide rewards for different types of evidence. To understand why the trademark approach always fails, while the geographical indication (GI) approach merely stalls and does not fail at all, one must take into consideration the difference in doctrine very seriously.

The trademark, whether it be a certification trademark as per Section 2(1)(e) of India’s Trade Marks Act, 1999, or any other country, is all about answering one question: does this symbol have the ability to distinguish between the goods belonging to one business enterprise or one certifying body and those belonging to another business enterprise or one certifying body? It’s as simple as that. If a trademark is merely descriptive of the goods in a general manner, it fails the distinctiveness test miserably.

Geographical indications, on the other hand, do not concern themselves with whether or not a name serves to differentiate a product from another. According to Article 22.1 of the TRIPS Agreement, the use of a geographical indication “indicates that the goods originate in the territory, region, or locality of that geographical indication, where a given quality, reputation, or other characteristic of those goods is essentially attributable to their geographical origin.” The issue here lies in terroir and reputation to place association and not competitive differentiation. Both producers from a historically established territory may use the name of the geographical indication protected product.

This is precisely the gap the Australian and New Zealand delegates walked through. In the 2022 Australian decision, the Registrar’s delegate found that while evidence showed a portion of the Australian market associated “Basmati” with rice of Indian and Pakistani origin, that evidence did not show the term distinguished APEDA-certified rice from rice “not so certified by other traders who have an equally valid claim to use the same term.” That is a textbook trademark distinctiveness finding and it is precisely what one should expect when a term’s actual meaning is geographical and shared, not source-specific. New Zealand’s Intellectual Property Office reached the same result in 2024 on near-identical reasoning, noting that APEDA’s own survey evidence showed basmati sold in New Zealand originated from a wide geographical spread, undermining rather than supporting the claim to trademark distinctiveness.

In other words, the same facts that should support a GI claim - widespread, longstanding, geographically rooted cultivation across a defined tract spanning two countries - are the facts that defeat a certification trademark claim. APEDA’s evidence proved too much for the instrument it was filed under.

The honest answer is structural, not strategic. Australia’s only dedicated sui generis geographical indication register maintained by Wine Australia under the Wine Australia Act, 2013 applies exclusively to wine. There is no equivalent standalone GI regime in Australia or New Zealand for agricultural products such as rice, in the way the EU operates its PGI/PDO scheme under Regulation (EU) No. 1151/2012 for a wide range of foodstuffs. In a scenario where a country wants protection for the name of its geographical association for a product category which does not have a separate GI registry, the only available instrument would be a certification trademark or a collective trademark.

This is what India opted for when it tried to protect the geographical association for its rice in Australia and New Zealand as the other available channel did not exist for it there. It is not that the APEDA made a wrong choice; the toolbox was really limited in these countries and it was bound to be challenged under a totally different doctrine.

The EU case appears quite different precisely because of that. In that case, India invoked the GI instrument Article 49 of Regulation (EU) No. 1151/2012 and the correct test there is the connection between terroir and reputation, not the distinctiveness between the certifying bodies. This is why the EU case resulted in years of procedural battle regarding demarcation, republication pursuant to Article 49(5) and opposition by Italy instead of an outright rejection based on the same reasoning which sank the applications in Australia and New Zealand. The right instrument leads to a tougher and longer fight instead of a quick knock-out.

There is an existing legislation in India itself which separates the two systems for an excellent reason. The Geographical Indications of Goods (Registration and Protection) Act, 1999 and the Trade Marks Act, 1999 came up in unison specifically to ensure that the GI will not have to satisfy the requirement of distinctiveness of a trademark. Section 25 of the GI Act does exactly this: it provides the Registrar of Trade Marks the power to either refuse or cancel registration of any trademark consisting of or containing a geographical indication of goods not originating from that particular area and whose use causes confusion and/or deception to consumers about the true origin of such goods. There is indeed such a statutory separation, only because parliament was aware of what the Australians and New Zealanders found out much later - a shared origin name for agriculture cannot fulfill the requirements of both trademarks and GIs at the same time.

The domestic Madhya Pradesh litigation over the 13 excluded districts still pending before the Madras High Court after the Supreme Court’s September 2, 2021 remand in Madhya Kshetra Basmati Growers Association Samiti v. Intellectual Property Appellate Board, Chennai is a dispute entirely internal to the GI regime about demarcation, not distinctiveness. It has no trademark analogue because the GI Act asks a geography question that trademark law is not built to ask.

Provided that the doctrine actually holds true, 3 implications are clear regarding India’s future litigation strategy in this case.

First, in jurisdictions that practice common law without a specialised register for geographical indication for the product in question, the effort to pursue certification trademark when evidence clearly shows a term to be used internationally in a generic way approaches self-defeat. The more evidence there is on the shared reputation of Basmati rice, the less likely it will become to prove that trademark distinctive enough. Thus, a collective mark covering a narrower and source-related certification application, or seeking a specialised GI system in those jurisdictions, would be doctrinally more sound than trying the same old trick.

Second, the litigation and rationale of the EU challenge must be conducted purely in terms of GI concepts of reputation, terroir and demarcation, not in terms of arguments based on market share and exports that speak to commercial success but not the standard set by Regulation (EU) No. 1151/2012.

Third, and perhaps most uncomfortable of all, India cannot make its reputation/terroir-based case abroad before its demarcation of this terroir is resolved domestically. The Madhya Pradesh litigation is not a side skirmish, but precisely the evidentiary basis that both the EU case and future GI-type cases elsewhere will come to rely upon.

Whereas the Basmati dispute is commonly framed as a clash of countries over control, the case is, in fact, more instructive in terms of tool choice and the outcome of trying to use the same facts to satisfy legal tests aimed at achieving opposite results.

Parul Shukla is an Assistant Professor of Law, Marwadi University, Rajkot, Gujarat.

Bijendra Shandilya is Final-year Law student, Integrated Programme in Law, Indian Institute Of Management, Rohtak (IIM-R).