The Legal Framework Of Culinary Tourism With Reference To Intellectual Property In India – Issues And Challenges
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Category: Intellectual Property
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THE LEGAL FRAMEWORK OF CULINARY TOURISM
WITH REFERENCE TO INTELLECTUAL PROPERTY IN
INDIA – ISSUES AND CHALLENGES
Sailesh Kumar N, School of Law, Christ University, Bangalore
ABSTRACT
India’s diverse culinary heritage forms a crucial aspect of its cultural tourism, where intellectual property (IP) laws, particularly Geographical Indications (GIs), trademarks, and copyright, play a vital role in protecting and promoting traditional food products. This study explores the complexities of the legal framework governing culinary tourism, focusing on the challenges in ensuring authenticity and safeguarding economic interests. Geographical indication appears as a significant mechanism for preserving regional uniqueness and originality of traditional food items, offering legal recognition that enhances their market value. Examples such as Darjeeling Tea, Tirupati Laddu, Dharwad Pedha, and the Rasagolla dispute emphasize the potential of GIs in boosting local economies and protecting cultural heritage.
However, issues like imitation, misrepresentation, and limited consumer awareness threaten the integrity and economic potential of GIprotected products. The lack of stringent enforcement and inadequate education among producers and consumers further aggravates these challenges, undermining the goals of culinary tourism. The study highlights the economic and cultural consequences of these issues, noting how inadequate protection of traditional culinary products can result in loss of revenue for local communities and dilution of India’s rich culinary heritage. Additionally, the Rasagolla dispute between West Bengal and Odisha exemplifies the complexities of establishing ownership rights over food products that are deeply rooted in regional identity and tradition.
To address these challenges, the study recommends strengthening enforcement mechanisms, improving consumer education on GI significance, and fostering collaboration between producers. Policymakers must implement strategic measures to promote India’s culinary traditions globally while safeguarding them from exploitation. By addressing these issues effectively, the legal framework can support the growth of culinary tourism, preserve India’s culinary legacy, and contribute to sustainable economic development. This comprehensive approach underscores the urgent need for
robust legal solutions to ensure the promotion and protection of India’s culinary tourism sector in the global market. Keywords: Cultural Heritage Preservation, Culinary Tourism, Geographical Indications (GIs), Intellectual Property Laws, Traditional Food Products.
1. Introduction:
India's culinary history is renowned globally, with a diverse range of flavours and aromas to entice food enthusiasts. Culinary tourism depends heavily on the lifestyle of the individuals, the history of the place, the customs and traditions of the region. The main requirement of any industry is the innovation to survive and to remain productive in the market and the food industry is no exception to this. In 2023, the culinary tourism industry in India is projected to grow to a value of US$23,028. 91 million. Future Market Insights predicts that India’s culinary tourism market will grow at an impressive annual rate of 23% between 2023 and 20331. As culinary tourism is both direct and indirect demand and need as the domestic and international visitors think about their food, even if it’s not primarily reason for going there.
In recent years, culinary tourism ventures in India have increased significantly in terms of value. Visitors are travelling around the country to try a variety of cuisines and beverages. Because of the increased interest in health and wellness, many travellers are seeking out Ayurvedic cuisine and wellness retreats in India. Healthy nutrition and traditional healing techniques are frequently integrated in these situations. According to data from the Ministry of Tourism, culinary tourism tends to spend more on dining and related experiences compared to other travellers, contributing to the local economy and supporting small scale food business. Indian cuisine has achieved global reputation and popularity in recent years, owing to the growth of Indian restaurants, celebrity chefs, and culinary festivals around the world.
A study from the World Travel & Tourism Council (WTTC) states that culinary tourism makes a substantial contribution to India's tourism economy, attracting foodies from all over the world. The country's lively street food culture, in particular, has received international recognition, with cities including as Delhi, Mumbai, and Kolkata acclaimed as culinary point for their unique street food options. 2 In addition to the numerous food and drink festivals that take place throughout the year in various parts of India, these events play a significant role in the pursuit
1 https://www.futuremarketinsights.com/reports/india-culinary-tourism-market
2 India at the forefront of culinary tourism, Vikas Deep Rathour, Executive Chef at Yellow Chilli Georgia, spotlights how India is at the forefront of this global phenomenon https://www.hotelierindia.com/fb/culinarytourism-in-india-a-global-perspective
of culinary tourism. As a result, the industry is growing at an exponential rate, and millions more gourmet visitors will visit India each year within the next few years. 3The Culinary tourism intersects with IPR by promoting and protecting the local regional food. It also enhances by preserving the regional foods and by acquiring IP rights to food products. The chefs, restaurants encourage the ongoing experimentation and the evolution if culinary artist by safeguarding such dishes. As there is a rise of competition in food industry and globalization, the brand owners can protect their culinary through Intellectual Property from counterfeiters and impersonators. The intersection of culinary tourism and IP primarily involves the protection of traditional recipes, regional specialties, and the branding of food-related products.
Culinary tourism has been a part of culinary heritage since ancient times. Regional food has always been a major attraction for travellers, reflecting the traditions, history and biodiversity of such region.
1.1. Objectives:
To investigate the impact of dilution and misrepresentation of geographical indications (GI) on the authenticity of culinary tourism. • To study about the cultural identity, social equity and the sustainability of tourism to protect the context within the culinary tourism. • To identity and analyse the challenges in maintaining the confidentiality of trade secrets within food industry focusing on recipe protection. • To evaluate the impact of the patenting process on innovation and culinary among small scale enterprises.
2. Review of Literature:
Certain goods have distinct flavours, fragrances, and quality, independent of where they are grown or created. These products are advertised using their initial name or a regional identifier. Kashmiri Apple, Basmati Rice with Paris Aroma, French Champagne, and Darjeeling tea and Bikaneri Bhujiya are only a few examples of products associated with their geographical 3 Marja Zattoni Milano, Ademir Antonio Cazella, Environmental effects of geographical indications and their influential factors: A review of the empirical evidence, Current Research in Environmental Sustainability, Volume 3, 2021
designation has given them great significance. There is a specific "connection" between the items and their original place of production because such traits are location-dependent. (Arora & et. al, 2023) India is known for having the oldest civilisation, a rich history, and a strong emphasis on food and culture. Its gastronomical study exposes us to a wide range of cuisine and culture. However, the registered food products account for only 3. 9% of GIs. Increased public awareness of GIlabelled foods is necessary since they reflect national pride. It also promotes gastronomic tourism in our country. (Shama Chavan, 2022) There are currently over 10,000 protected GIs around the world, with a trade value of more than US $50 billion. GI signifies a link not just between a product and its precise region of origin, but also between its distinct manufacturing methods and defining traits.
As a result, the geographical indication gives a fascinating characterisation of both the internal and external indications to the good, as a member of a given group possessing specific features, reputation, or other characteristics that are fundamentally tied to that geographical area. (Sarkar, Ipsita, 2022) A geographically distinct product is associated with features and reputation. The origin has a
sign linked with it. The Darjeeling tea has often face violation of passing off from tea produced in Kenya and Sri Lanka, Darjeeling tea has been referred to as "Kenyan tea" or "Sri Lankan tea" without a geographical indication because of its distinct flavour and the fact that it is grown in the hills of North Bengal. Also, Tirupati laddus have no distinguishing characteristics other than their size. Flour, ghee, sugar, and dry fruits are common ingredients in laddus. According to the TTD, laddus deserve a Geographical Indication designation since the particular taste of laddus is the result of divine intervention. (Chandrachur & et.al, 2020).
3. Methodology:
The research methodology for this study adopts a doctrinal approach, focusing on the analysis of primary and secondary legal sources to explore the intersection of intellectual property (IP) law and culinary tourism in India. This methodology will be applied to examine legal frameworks surrounding the protection of traditional knowledge, food-related IP, and culinary tourism. The literature review covers academic articles, books, and legal commentaries on topics such as Geographical Indications (GI), trademarks, patents, and trade secrets, with a
specific focus on their relevance to culinary tourism. Additionally, reports and studies from governmental and non-governmental bodies, including the Ministry of Tourism and the WTO, will be reviewed to understand the current culinary tourism landscape in India. Legal analysis will involve studying Indian IP laws, including the Geographical Indications of Goods Act, the Copyright Act, the Trade Marks Act, and the Patents Act, and analysing relevant case laws such as the Darjeeling Tea and Basmati rice patent disputes. Case studies on successful GI registrations like Darjeeling Tea and Bikaneri Bhujia will be analysed to understand the practical application of IP law in culinary tourism. A comparative analysis will be conducted between India’s IP laws and international frameworks, identifying strengths and weaknesses.
Data collection will involve qualitative research through interviews or surveys with culinary tourism experts, chefs, and IP professionals, to explore the challenges and opportunities in this field. Finally, the research will evaluate the current state of culinary tourism and IP protection in India, synthesizing the findings to provide comprehensive insights into the legal framework’s impact on the sector.
3.1. Limitations:
Limitations of the study while undertaking this research, the researcher encountered some limitations. The research on culinary tourism and intellectual property (IP) in India faces several limitations, including the evolving nature of IP protections for traditional culinary practices and regional diversity in culinary traditions. Enforcement challenges, especially in rural areas, and the risk of cultural appropriation complicate the application of IP laws. The lack of a comprehensive legal framework for culinary tourism further hinders effective protection. Additionally, the rapid evolution of culinary trends and international legal complexities pose difficulties for safeguarding traditional knowledge.
3.2. Historical Background of Culinary Tourism And IP:
The early roots of culinary tourism are deeply intertwined with the history of trade and cultural exchange. Ancient trade routes like the Silk Road and the Spice Route played an essential role in introducing travellers to the unique culinary traditions of distant lands. Culinary tourism has been part of cultural exchange since ancient times. Historically, India’s traditional foods and culinary practices were transmitted orally through generations without formal recognition or legal protection. This often led to misappropriation and loss of traditional knowledge, with
recipes and methods being copied without credit or economic benefit to the communities. These routes facilitated the exchange of ingredients such as spices, herbs, and food products, which became integral to various regional cuisines. For example, Indian spices like pepper and cardamom to Europe revolutionized European cooking, while Chinese tea and silk became valued commodities in the West. Alongside ingredients, trade also spread cooking techniques, recipes, and dining customs, creating a melting pot of culinary practices. This interaction fostered cultural preservation, as regions became similar with certain culinary identities. French wine-making, for instance, gained global recognition, rooted in centuries-old practices tied to specific territory. Similarly, Italian pasta and pizza evolved as symbols of Italian heritage, reflecting both local traditions and external influences.
In India, spices such as turmeric, cumin, and saffron not only became culinary staples but also symbols of cultural identity and heritage. These regional specialties eventually attracted explorers and traders who sought to experience authentic culinary traditions, marking the informal beginnings of culinary tourism. Over time, these exchanges laid the groundwork for the global appreciation of diverse cuisines, enriching the cultural fabric of societies worldwide. These culinary identities sparked interest among traders, explorers, and travellers, who sought to immerse themselves in authentic culinary experiences. This search for authentic flavours and traditions marked the informal beginnings of culinary tourism.
The practice of traveling to savour regional specialties was further fuelled by the cultural prestige associated with certain cuisines, such as the refinement of French cuisine or the rustic appeal of Mediterranean diets. Culinary tourism also played a role in cultural preservation. Local food traditions became a source of pride and identity for communities, fostering a sense of belonging and continuity. For instance, traditional Japanese kaiseki meals and Mexican mole sauces are celebrated as cultural treasures, often passed down through generations. Over time, the global exchange of culinary practices enriched societies by promoting cross-cultural appreciation. The shared love of food bridged cultural divides, creating a universal language of flavours and traditions.
Culinary tourism today stands as a testament to these early interactions, offering travellers an opportunity to explore the world through its diverse cuisines, each carrying the legacy of historical trade and cultural connections.
3.3. Intersection of Intellectual Property and Culinary Tourism:
India's culinary landscape is strongly rested in its cultural, geographical, and ethnic variety,
with traditional food and beverages reflecting centuries of practice. The main aspect of culinary tourism is to preserve their uniqueness, authenticity and its quality as it is distinct from others. In order to protect such innovation and make it to remain productive, Intellectual Property Rights helps the culinary tourism to reserve their right to a particular food item. Culinary Tourism improves monetisation and it also protects the rights of the people by utilising various Intellectual Property tools such as copyrights, trademarks, certification marks, collective marks, geographical indications, trade secrets, and industrial design, etc. The intersection of culinary tourism and intellectual property (IP) reflects the need to protect and promote the authenticity, cultural heritage, and economic value of regional cuisines and food-related innovations.
The legal rights that creators and innovators are given to safeguard their works of art, inventions, or brand identities are known as intellectual property rights, or IPRs. IPR are an integral aspect of modern legal and economic frameworks, designed to protect the creative and innovative endeavours of individuals and organizations. Various IP tools have been instrumental in safeguarding culinary assets, ensuring their fair utilization, and fostering their role in tourism. Culinary tourism, which emphasizes exploring and experiencing the unique foods and beverages of a place, has gained significant momentum worldwide. Registering culinary elements under IP laws, such as Geographical Indications (GIs), trademarks, and copyrights, helps safeguard cultural heritage and promotes regional identities.
The first Intellectual Property Right (IPR) officially recognised for a culinary tourism product is frequently associated with Geographical Indications (GI). The first Intellectual Property Right (IPR) officially recognised for a culinary tourism product is frequently associated with Geographical Indications (GIs). GIs are a form of IPR that protect products originating from a specific region, where a given quality, reputation, or other characteristic is essentially attributable to that origin. Geographical Indications helps in promoting the unique feature of products based on their geographical origins. It can protect and promote culinary tourism by enhancing the authenticity, reputation and economic value of the regional culinary traditions. Increased public awareness of GI-labelled foods is necessary since they reflect national pride.
It's also to be noted that the GI meals will enhance culinary tourism in our country. As a result, the country's culinary culture is preserved through the use of traditional recipes. 4 Trademarks protects the unique names of dishes, their logo and branding to prevent from unauthorised use. The cook book or recipe book of restaurants like the traditional restaurants popular for gourmet
4 Chavan, S. (2022). Geographic Indicator Foods of India. Journal of Food and Nutrition.
https://www.semanticscholar.org/paper/Geographic-Indicator-Foods-of-India- Chavan/d04e0eea26eaaf188fc36385380b302641161c74#citing-papers
tourism in a particular region, the culinary tourism brochures and recipe books can be protected under copyright. Since the work is in tangible forms, it fulfils the criteria of originality which satisfies one of the prerequisites of copyright. Secret recipes are protected as trade secrets, as restaurants may keep their unique recipes confidential to maintain a competitive edge. Specific cooking methods or the method of preparation and unique techniques can also be protected as trade secrets. Sharing recipes among employees in the food industry can compromise the security of trade secrets, such as proprietary recipes, by increasing the risk of unauthorized disclosure. When recipes are shared without strict confidentiality measures, they can be leaked to outsiders or competitors, making it difficult to trace the source of the leak.
This broad sharing can weaken legal protections, as a recipe may lose its trade secret status if its confidentiality is compromised. To safeguard the interests of all producers, there is a need for stronger protections of traditional knowledge, fair compensation mechanisms, and greater awareness and responsibility within the tourism sector. By protecting culinary tourism under IP, it helps to build consumer trust by assuring the quality and origin of products. Strong IP protection helps to maintain and enhance the brand identity of culinary businesses and region.
3.4. Geographical Indication:
GI registrations aim to boost the economic prospects of regions by ensuring higher prices and granting exclusive branding rights. The Geographical Indications of Goods (Registration and Protection) Act, 1999, came into effect in 2003, and the process of registration started in 2004-
2005. The registration of geographical indications for food items enabled regions to legally
safeguard their culinary products, encouraging tourism by identifying foods with their places of origin. This sort of intellectual property contributed to a perception of authenticity and exclusivity. GIs also contributed to local economy by preserving the traditional knowledge of local communities and helping them with premium market position. The Darjeeling tea from West Bengal was the first GI tag given in India and is one of the earliest and most renowned GIs in India, granted in the year 2004. Initially, Darjeeling tea is not a culinary tourism product, but it laid down the groundwork regulations for the protection of food and beverages under GI, which later influenced it as a culinary tourism product.
Mithila makhana (Bihar), Tandur red gram (Telangana), Raktsey Karpo apricot (Ladakh), Alibag white onion (Maharashtra), and Mancurad mango (Goa) are some of the foods that acquired GI status in 2022 and 2023. There are currently more than 365 food products with the GI tag. The state with the most GI registrations is Karnataka, which is followed by Tamil Nadu and Maharashtra. The
representation of India's foodstuff in GI is relatively low, with only nine. 5 The recognition highlighted the importance and potentiality of GI in promoting culinary tourism by emphasizing its authenticity. Through this, several Indian culinary products were registered under GIs, including Bikaneri Bhujia, Nagpur Orange, Hyderabadi Haleem, Tirupati Laddu and so on. This registration not only protected the food product but also enhanced marketability and it drawn the tourist to seek genuine experience. Effective promotion of GI is crucial for economic success in the Culinary Tourism Industry. Chefs, restaurants, and makers of traditional culinary dishes can use registered GIs as a branding technique for their ingredients. 6 This can highlight the great quality of the dishes, drawing more tourists and customers.
In the case of typical recipes, GI can be obtained on the ingredients nonetheless, GI can also be obtained from distinctive foods. Furthermore, buyers may be more inclined to pay more for regionally protected goods if they register for GI. GI registrations standards also help to maintain the quality of the corresponding food products. By safeguarding regional products, GIs encourage local artisans and farmers to continue traditional practices, boosting rural economies. Culinary tourists are often drawn to regions known for GI-tagged products, further supporting local economies. GI tags ensure that consumers receive products that meet specific standards of quality and authenticity, preventing the market from being flooded with substandard imitations.
3.5. Exploring Other Intellectual Property Categories:
Culinary tourism, which involves exploring and experiencing a region's food and beverages, has become a significant driver of economic growth for many areas. With the rise of this trend, intellectual property rights have been instrumental in safeguarding the identity, authenticity, and reputation of culinary products. Here’s a breakdown of how different IP tools contribute to this cause:
3.5.1. Trademarks in Culinary Tourism:
According to Article 16.1 of the TRIPS Agreement, the owner of a registered trademark has the exclusive authority to prohibit third parties from using identical or similar signs for products 5 Sarkar, Ipsita. (2022). Protection of geographical indications in food products: study of the world & india. Indian Journal of Integrated Research in Law 6 Nehaol Sri L V & Sriharsha Madichetty, Role of Intellectual Property in Gastronomic Tourism, Indian Journal of Integrated Research in Law Volume III Issue III
and services that could cause confusion. Trademarks play a crucial role in branding and differentiating food products associated with a particular region or culture. By protecting the name, logo, or packaging of a product, trademarks ensure that consumers associate the product with a specific standard of quality and origin. Trademarks can be used to protect restaurant names and logos, dish or ingredient names, and the names and logos of other market participants in the culinary tourism industry, such as food festivals, distribution networks, taglines, slogans, food shapes, etc. that might draw tourists to the business. 7 Trademarks not only protect the product’s name but also its reputation, which is often tied to its place of origin.
For instance, products like New York Cheesecake and Kentucky Fried Chicken are globally recognized not just for their taste but also for the heritage and expertise associated with their regions of origin. A trademark assures consumers of the authenticity of the product, ensuring that they are purchasing a genuine item rather than an imitation. This builds trust and loyalty among consumers. Regions that successfully brand their culinary specialties using trademarks can significantly boost local economies by attracting tourists and generating revenue through exports. For example, Section 9 of the Indian Trademarks Act, 1999, outlines the reasons why a mark may be refused registration, including where it lacks distinctiveness or is intended to mislead the public. As a result, common or generic names for food items or their ingredients are not eligible for trademark protection.
For example, the Indian dish "Dal Makhani" lacks any distinctive qualities, hence it cannot be issued a trademark. However, the mark can be registered as a trademark if unique terms and aspects are added. For instance, the name of the well-known Malaysian traditional dish Nasi Lemak is generic and cannot be registered as a trademark. However, the phrase "Nasi Lemak Saleha," in addition to a logo/image, was registered as a complex trademark under the Malaysian Trademark Act 2019.
3.5.2. Trade Secrets in Culinary Products:
To safeguard against unfair competition as outlined in Article 10bis of the Paris Convention, Article 39 of the TRIPS Agreement provides protection for 'undisclosed information,' commonly known as 'trade secrets.' This protection prevents unauthorized acquisition, use, or disclosure of such information in violation of honest commercial practices. For information to qualify as a trade secret, it must meet three criteria: (1) it must derive commercial value from 7 Giulio Zanetti, 'Promoting the Development of Gastronomic Tourism in Malaysia through IP - Report: IP Analysis' (WIPO) https://www.wipo.int/ip-development/en/agenda/projects/malaysia.html (last accessed on 26 September 2024)
being kept secret, (2) it must be known to only a limited group of individuals, and (3) the rightful owner must have taken reasonable measures to maintain its confidentiality, such as using non-disclosure agreements. Trade secrets can protect a variety of commercially sensitive information, including client and supplier lists, manufacturing processes, and other proprietary details. Although India does not have specific legislation for trade secret protection, its courts have upheld such protections under common law principles. In the context of culinary tourism, trade secrets are particularly valuable for preserving the exclusivity of culinary innovations. They can protect secret recipes, specialized production methods, and supplier lists for key ingredients.
Examples include the closely guarded recipe for KFC's fried chicken, the Coca- Cola formula, and the composition of Angostura Liquor, all of which are iconic instances of trade secrets in action. Culinary tourism largely thrives on the traditional culinary knowledge of a region, as tourists and customers are drawn to experience authentic and traditional delicacies. While the basic methods of preparing such traditional dishes like the South Indian dish Idly are often public knowledge, unique techniques or processes used in their preparation may qualify as trade secrets. For example, in the Bimbo Bakeries case8, the U. S. Court of Appeals determined that although the general process for making English muffins was publicly known, the specific method used by the owner was unique enough to be considered a trade secret.
The court even issued an injunction preventing a former executive from joining a competitor company. Similarly, in culinary tourism, traditional food preparations can be protected as trade secrets if they involve distinctive processing techniques or preparation methods. Protecting intellectual property through trade secrets offers significant advantages, particularly for restaurants and MSME manufacturers in the industry. Unlike registered IP rights like patents, which are limited to a specific duration, trade secrets can be protected indefinitely, provided the information remains confidential. Relying on trade secrets comes with its own challenges. In the food industry, issues like transparency and food safety can make using trade secrets more complicated.
Even so, they are still an effective way to protect the uniqueness of traditional culinary practices and stay competitive in the culinary tourism market.
3.5.3. Artistic Craftsmanship and Copyright:
A contentious issue in culinary tourism is whether copyright protection can extend to specific
8 Bimbo Bakeries USA, Inc. v Botticella 613 F.3d 102 (2010)
styles of food plating, where the artistic presentation of food enhances its value. For food plating to qualify for copyright protection under Indian law, it must be classified as an artistic work under Section 13(1)(a) of the Indian Copyright Act (ICA), as defined in Section 2(c) of the ICA, and meet the requirements of originality and fixation. Food plating involves precision, culinary expertise, creativity, and significant labour to present dishes aesthetically and appealingly. This process often demands specialized skills and training. As such, food plating can be classified as artistic craftsmanship under Section 2(c)(iii) of the ICA, thereby qualifying as an artistic work. For food plating to be considered original, it must display a degree of creativity and be the result of skill and judgment exercised by the chef.
However, food plating often draws inspiration from existing designs, making it potentially derivative. In EBC v. DB Modak9, Indian courts established that derivative works must exhibit substantial variation and meet the standard of a "minimum level of creativity. " Applying this standard, derivative food plating lacking originality would not qualify for copyright protection. However, original creations that demonstrate unique creativity would deserve recognition and protection.
3.5.4. Patents and Innovation in Culinary Contexts:
Patents are designed to protect new inventions, including innovative food production methods, compositions, and processes. In the culinary context, patents incentivize innovation by granting exclusive rights to inventors for a limited period, enabling them to commercially exploit their inventions. Patent laws face significant challenges when it comes to balancing the protection of innovation with the ethical treatment of traditional knowledge (TK). Traditional practices, such as food recipes or herbal remedies, are part of communal heritage and often lack the novelty or individual authorship required for patent protection. However, modified versions of these traditional practices are sometimes patented, raising concerns of biopiracy and cultural misappropriation. A patent for the ability of turmeric to cure wounds was awarded to two American researchers
in the Turmeric Patent Case. This usage of turmeric is well-established in Indian traditional knowledge. India successfully contested the patent by providing evidence from ancient texts, leading to its revocation and marking a victory for protecting Traditional knowledge from unjust claims. Similarly, in the Basmati Rice Case, RiceTec, a U.S. company, sought patents for specific strains of basmati rice. This sparked international outrage as it was seen as an
9 Eastern Book Company v DB Modak (2008) 1 SCC 1
attempt to appropriate traditional agricultural practices. India challenged the claim, resulting in a narrowed scope of the patent and highlighting the need for mechanisms like databases to document Traditional knowledge and prevent its misappropriation. These cases underscore the strain between global intellectual property regimes and the protection of traditional communal knowledge.
3.6. Contemporary Issues in Safeguarding Culinary Tourism through Intellectual
Property: The challenge of categorizing food sources and recipes under standard intellectual property (IP) regulations arises from their unique nature, which often includes the line between tangible and intangible heritage. Traditional food and drink represent more than mere culinary products, they embody the cultural identity, history, and traditions of the communities that create them. The lack of comprehensive and adaptable IP frameworks to protect these cultural expressions leads to significant risks, including dilution, misrepresentation, and economic exploitation. When traditional food and beverages are imitated, mass-produced, or promoted inaccurately, several issues arise, the unique qualities that distinguish local cuisines, such as traditional methods, regional ingredients, or cultural practices, may be diluted when imitated by commercial enterprises.
For instance, mass-market versions of traditional dishes often compromise on quality and authenticity to reduce costs or provide to global tastes. Traditional food and drinks are deeply tied to the cultural heritage of a community. Misrepresentation or commercialization without acknowledging their roots risks erasing their cultural significance, reducing them to mere commodities. Misrepresentation leads to consumer misunderstanding about the origins and authenticity of the product, which undermines the value and reputation of the original. Local specialties often provide vital economic benefits to the regions that produce them. When these products are imitated or misrepresented, the local producers, often small-scale artisans or farmers, lose out on economic opportunities as the market becomes saturated with inauthentic, lower-cost imitations.
Communities may abandon traditional methods and knowledge if they cannot compete with mass-produced versions, leading to a gradual decline in unique culinary practices. Local economies rely on regional branding to attract culinary tourism and export revenues. Misrepresentation erodes the distinctiveness of these brands, reducing their competitiveness in global markets.
There are numerous challenges when using traditional IP tools on food sources and recipes. Recipes and methods are often passed down orally and lack the formal documentation necessary for traditional IP protection like patents. Many traditional foods and beverages are considered part of the public domain, making it difficult to claim exclusive rights. While GIs are effective for protecting region-specific products like Darjeeling Tea or Parmigiano- Reggiano, they may not cover broader aspects of culinary heritage or newer innovations derived from traditional practices. Many local producers are unaware of IP frameworks or lack the resources to secure and enforce their rights. Darjeeling Tea is a premium tea grown exclusively in the Darjeeling district of West Bengal, India.
It is renowned for its unique flavour and aroma, which are attributed to the specific climatic and soil conditions of the region. The GI status was granted to Darjeeling Tea to protect its authenticity and ensure that only tea produced in the Darjeeling region could be marketed as "Darjeeling Tea. " Despite its GI status, there have been instances where tea produced outside the Darjeeling region has been marketed as "Darjeeling Tea. " For example, some companies have labelled their teas as "Darjeeling Tea" or utilised similar names to capitalise on the renowned status and high market value of authentic Darjeeling Tea. There have been several legal battles in which the Darjeeling Tea industry has sought to protect its GI status from misuse.
For instance, legal action has been taken against companies and entities that sold tea labelled as "Darjeeling Tea" without proper authorization or those using misleading packaging that could deceive consumers. These legal battles have led to rulings reinforcing the protection of the GI status of Darjeeling Tea. For example, regulatory actions and legal proceedings have resulted in enforcement measures to prevent the use of the "Darjeeling" name for teas not produced in the designated region. Additionally, efforts have been made to educate consumers and retailers about the authenticity of Darjeeling Tea and the importance of respecting GI protections. This case underlines the crucial importance of strong enforcement of GI rights, effective legal remedies to punish infringements, and continued efforts to raise consumer knowledge regarding the authenticity of GI products.
Dharwad Pedha is a popular traditional dessert from the city of Dharwad in Karnataka, India. Dharwad Pedha was granted GI status in the year 2008. Dharwad Pedha is a milk-based sweet made from khoa (reduced milk) and sugar, often flavoured with cardamom. It is known for its distinctive taste and texture, which are attributed to the traditional preparation methods and local ingredients used in Dharwad. Even with GI protection, there have been cases where
products similar to Dharwad Pedha, made outside the designated region or with different methods, have been sold under the name "Dharwad Pedha" or similar labels. This misrepresentation can mislead consumers and dilute the brand value of the authentic product. The lack of awareness can lead to the sale of imitation products as genuine Dharwad Pedha, affecting the market reputation and economic value of the authentic sweet. Tirumala Tirupati Devasthanams (TTD) proposed a geographical indication for Tirupati Laddu Prasad in recognition of its unique preparation, quality, and reputation, and to prevent black marketing by hawkers. The Tirumala Tirupati Devasthanam is a temple shrine to Lord Venkateshwara in Andhra Pradesh.
It obtained Geographical Indication protection in 2009 for its prasadam (holy food) distributed to devotees in order to distinguish it from other producers producing the same laddus under the same name. This is the first time a religious site has acquired geographical indication protection. This emphasises the importance of preserving quality and combating the spread of counterfeit products on the market. 10 Bikaneri Bhujia, a crispy snack made primarily from moth beans and gram flour, holds a unique place in India's culinary heritage. Originating in Bikaner, Rajasthan, it is known for its distinct taste, which was prepared for the first time in the year 1877, during the reign of Maharaja Shri Dungar Singh of Bikaner.
However, manufacturers outside Bikaner began using the term "Bikaneri Bhujia" generically for similar products, diluting its identity and undermining the authentic producers. 11 GI tag was granted to “Bikaneri Bhujia” in the year 2010. The GI tag officially recognized the product as unique to Bikaner, linking its characteristics to the region's specific geographical and cultural factors, including its dry climate and the craftsmanship of local artisans. This protection ensured that only manufacturers from Bikaner could use the term “Bikaneri Bhujia” for their products and preserve its authenticity and ensure that the term was not misused by external parties. Before the GI tag, manufacturers across India used the term “Bikaneri Bhujia” freely, leveraging the established reputation of the snack without adhering to its traditional methods or geographical roots.
The GI protection reaffirmed the principle that names linked to specific regions and traditional knowledge cannot be treated as generic names. As generic 10 Meghna Banerjee and Susanah Naushad, 'Grant of Geographical Indication Designation to Tirupati Laddu: Commercialization of faith? ' [2010] SCC 108, 113. 11 DP Singh, Globalization of Bikaneri Bhujia and Rasgulla Under Geographical Indication Act of Trips, 3 INDO
AM. J. AGRIC & VET SCI. 1, 3 (2015)
names are being prohibited from being registered as Geographical indications under Section 9(f) of the Act, 1999. This upheld the integrity of the product's identity and avoided unfair competition. The origins of Rasogolla are a topic of cultural pride and historical debate between West Bengal and Odisha. Nobin Chandra Das of Calcutta is credited with creating "Banglar Rasogolla" in 1868, introducing the spongy, white variant. West Bengal received the GI tag for "Banglar Rasogolla" in 2017, highlighting its unique preparation and cultural significance. Conversely, Odisha claims Rasogolla's origins date back to temple traditions and rituals, particularly its offering to Lord Jagannath and Goddess Lakshmi. Odisha's "Odishara Rasagola" received a GI tag in 2019, emphasizing its traditional and religious significance.
The two versions differ in preparation, Odisha's is creamier with brownish colouration from caramelized sugar, while West Bengal’s is spongy and white from boiling in clear sugar syrup. The dispute was resolved by the GI registry, considering historical evidence and cultural context. Both GI tags highlight the unique culinary traditions of each region. Safeguarding the authenticity and economic value of traditional foods and drinks requires a comprehensive approach involving legal, social, and economic strategies. Strengthening Geographical Indication (GI) protections is a key step to ensure that only genuine products from specific regions can use their name and branding, preserving the uniqueness and reputation of regional specialties. Expanding the reach and enforcement of GI tags can better protect against misuse and imitation.
Creating new intellectual property categories to specifically safeguard traditional knowledge and culinary practices can address current legal gaps and provide more effective protection for the unique qualities of traditional foods and beverages. Community-based IP models are another valuable strategy, enabling local communities to collectively protect and manage their culinary heritage while ensuring fair benefits for everyone involved. Governments and NGOs can support these efforts by raising awareness among local producers about IP rights and providing legal and financial assistance to secure and enforce these protections. On a global level, frameworks like the Nagoya Protocol on Access and Benefit Sharing can help ensure that communities are fairly compensated and recognized for the commercial use of their traditional culinary knowledge.
By adopting these measures, we can protect the cultural and economic importance of traditional foods and drinks while promoting sustainable development for the communities that maintain these traditions.
4. Findings:
Traditional food and drink often do not fit into conventional intellectual property (IP) categories due to their unique combination of tangible and intangible heritage, leaving them difficult to protect under existing laws. Recipes and culinary practices are often considered public domain or lack formal documentation, exacerbating the risks of misrepresentation and economic exploitation. Misrepresentation and mass production of traditional foods dilute their authenticity and compromise their cultural significance, often harming the regions that produce them by saturating markets with low-quality imitations. While Geographical Indications (GIs) have effectively safeguarded the authenticity and regional identity of products like Darjeeling Tea, Bikaneri Bhujia, Dharwad Pedha, and Rasogolla, enforcement challenges persist, including a lack of awareness and resources among local producers.
Tailored approaches, such as developing new IP categories and promoting community-based IP models, can address these gaps and ensure equitable benefits. International frameworks like the Nagoya Protocol offer additional mechanisms for fair compensation and sustainable practices in the commercial use of traditional knowledge. Governments and NGOs must play an active role in raising awareness, providing legal and financial support, and strengthening GI protections with robust enforcement mechanisms. A holistic and adaptive strategy is essential to preserve the cultural and economic significance of traditional culinary heritage while fostering sustainable development for the communities that uphold these traditions.
5. Conclusion and suggestion:
While there is significant potential to utilize various IP tools in the Culinary Tourism sector to promote and enhance tourism, several challenges accompany their implementation. For instance, collective and certification marks can effectively build customer trust and improve visibility, attracting culinary tourists to a region. However, successfully adopting these marks requires substantial investment of funds, time, and effort, as well as collaboration among different market players, such as restaurants. Additionally, in many cases, the names and preparation methods of culinary dishes are widely known or considered traditional knowledge, which can limit their eligibility for trademark protection.
Furthermore, there is a gap or lack of clarity in the domestic legal framework of countries like India regarding unconventional areas, such as food plating, in the context of Culinary Tourism. Despite these barriers, the application of IP tools holds promise for enhancing the branding of regions as culinary tourism
destinations. These tools can significantly support the advertisement and marketing of culinary products across regions, improve their visibility and reliability for global customers, attract more tourists, and create new business opportunities in the Culinary Tourism sector.
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