New Zealand and Kenyan courts have turned down India’s request to safeguard its exclusive marketing rights for basmati rice under the Trade-Related Intellectual Property Rights (TRIPS) agreement of the World Trade Organisation (WTO).
In rulings last month, both courts concluded that TRIPS cannot be invoked to secure Geographical Indication (GI) tags unless they comply with domestic laws. The New Zealand High Court and Kenya’s Court of Appeal dismissed appeals by the Agricultural and Processed Food Products Export Development Authority (Apeda), challenging the rejection of its trademark application for basmati rice.
Apeda sought to register basmati under New Zealand’s Trade Marks Act and objected in Kenya to granting a trademark for six rice varieties containing the term basmati. Its argument was based on the assertion that Indian basmati rice possesses a GI tag, which would confer exclusive marketing rights for the fragrant rice in both countries. Apeda serves as the coordinating agency for obtaining GI tags for various agricultural products grown in India.
In both jurisdictions, Apeda contended that Article 22 of TRIPS mandates that signatories provide legal avenues for stakeholders to prevent the misuse of GIs. In New Zealand, Apeda stated that registering the basmati mark represented the only feasible method for protecting the GI recognized under Indian domestic law.
Justice John Boltd of New Zealand’s High Court determined that the TRIPS agreement did not assist Apeda’s case. He stated, “TRIPS does not obligate members to recognize and enforce GIs that are registered in other countries but cannot satisfy the relevant requirements under domestic law.” Crown Prosecutor Garry Claude Williams asserted that TRIPS only requires WTO members to prevent misleading use of geographic indicators. New Zealand’s Fair Trading Act 1986 already protects consumers from deceptive claims about a product’s place of origin, a notion that Justice Boltd accepted.
In the Kenyan Court of Appeal, Apeda urged that a trademark not be granted to a commodities trading firm that included the term basmati. They emphasized that Kenya, as a WTO member, was bound by TRIPS obligations.
The court noted that these obligations are incorporated into Kenyan law through Article 2(5) and (6) of the Constitution, which integrates general rules of international law and ratified treaties into domestic legal frameworks. Justices Wanjiru Karanja, Aggrey Otsyula Muchelule, and J Mumbi Ngugi concluded that TRIPS functions as a self-executing treaty in Kenya, necessitating implementation via national law.
“To interpret the legal process as enabling parties to invoke TRIPS directly, without following the statutory procedure, would bypass the legislative design,” the justices stated. Kenya’s Trade Marks Act aligns with TRIPS obligations by allowing geographical indications to be registered as either collective or certification marks.
The justices further observed that TRIPS does not prescribe a singular pathway for compliance, as different jurisdictions, including the European Union, the U.S., and India, have adopted varied models. In the New Zealand High Court, Justice Boldt questioned the utility of the basmati trademark registration, noting that Apeda had acknowledged it would not seek to prevent Pakistan from using the same term for its long-grained rice.
Published on November 19, 2025.
