Overhead view of white Basmati rice in an old wooden spoon, sitting on a rough, rustic wooden background. Shallow focus.
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221A
New Zealand and Kenyan courts have rejected India’s plea to protect its exclusive basmati marketing rights by invoking the Trade-Related Intellectual Property Rights (TRIPS) pact of the World Trade Organisation (WTO).
In separate rulings last month, the courts said the TRIPS pact cannot be invoked to provide GI tags unless they satisfy the law in their countries.
The New Zealand High Court and Kenya’s Court of Appeal dismissed the Agricultural and Processed Food Products Export Development Authority (Apeda) appeals against the rejections of its application for trademark recognition for its basmati rice.
APEDA’s plea
In New Zealand, Apeda sought registration of Basmati under the Trade Marks Act. In Kenya, it objected to providing trade mark to six rice varieties that included the word basmati. Apeda’s approach was based on arguments that its basmati rice has a Geographical Indication tag.
A GI tag will provide exclusive marketing rights to the fragrant rice in both nations. Apeda is the nodal agency for getting the GI tag for exclusive agri produce grown in various parts of the country.
In both courts, Apeda argued that Article 22 of TRIPS obliges signatories to “provide the legal means for interested parties to prevent” the misuse of GIs.
In New Zealand, Apeda said registration of the Basmati mark was the only practical mechanism open to protect the GI that exists in the Indian domestic law.
No obligation
Justice John Boltd of the New Zealand High Court said he did not consider the TRIPS agreement helped Apeda in its case. “TRIPS does not oblige members to recognise and enforce GIs which are registered in other countries but cannot satisfy the relevant requirements under domestic law,” he said.
Crown Prosecutor Garry Claude Williams argued that TRIPS mandates only that WTO members prevent the misleading use of geographic indicators. New Zealand’s Fair Trading Act 1986, prevents traders from misleading consumers about the geographical origin of their products.
Justice Boltd accepted the argument, saying New Zealand law already provides consumers with ample protection from false representations about a product’s place of origin.
In the Kenyan Court of Appeal, pleading not to grant a trademark to a commodities trading firm with the inclusion of the word Basmati, Apeda argued that as a WTO member, Kenya was bound by TRIPS obligations.
‘Self-executing treaty’
It said the obligations “form part of Kenyan law by virtue of Article 2(5) and (6) of the Constitution, which incorporate general rules of international law and ratified treaties into the domestic legal order”.
Justices Wanjiru Karanja, Aggrey Otsyula Muchelule and J Mumbi Ngugi ruled that TRIPS was a self-executing treaty in Kenya: it requires implementation through national law.
“To construe the legal process as allowing parties to invoke TRIPS directly, without recourse to the statutory procedure, would be to bypass the legislative design,” they ruled.
Kenya’s Trade Marks Act gives effect to TRIPS obligations by providing a pathway for geographical indications to be registered as collective or certification marks, the judges said.
No single pathway
They said TRIPS does not prescribe a single pathway for compliance as different jurisdictions, such as the European Union the US and India, have adopted different models.
In the New Zealand High Court, Justice Boldt wondered how the Basmati trademark registration would help when Apeda had acknowledged that it does not intend to prevent Pakistan from using the same term for its long-grained rice.
Published on November 19, 2025