Part 1: Khadi's Origin and Legal Battles: Unraveling the Historical Significance
SpicyIP
Part 1: Khadi's Origin and Legal Battles: Unraveling the Historical Significance
Discussing "Origin" as a legal concept as enshrined under different IP laws with "Khadi" as a case study, we are pleased to bring to you this very interesting historical dive by Subhadeep Chowdhury. In this post, Subhadeep discusses the recent legal battles pertaining to "Khadi" and recounts how Khadi derived its meaning (legally) in light of the Khaddar (Name Protection) Act, 1934. In Part 2, he continues from here to build an argument for an interdisciplinary approach to study IP with the concept of origin as the subject matter.
Subhadeep is a Doctoral Research Fellow for the European Research Council (ERC) funded “Creative IPR” project at the Department of Archaeology, Conservation and History, University of Oslo. His research interest includes histories of institutional connections of the Global South with European imperialism with a particular focus on intellectual property.
Part I- Shifting Origins of Khadi
By Subhadeep Chowdhury
Over the past two decades, Indians have been embroiled in the question of origins as understood in terms of trade marks and geographical indications (GI). However, it is not just with the advancement and popularisation of these forms of intellectual property rights (IPR) in the twenty-first century that people in India have started to associate certain products with certain places. What do present-day legal battles over origins—whether of famous types of fabric or food—cause to our understanding of where these beloved commodities come from? A historical insight into the first-ever legal approach to defining khadi can help us gain a better understanding of how political developments over time can displace even the most agreed upon origins—both in a geographical as well as commercial sense.
While a legal approach can fix the origin of a particular product to a particular place, a critical historical lens can tell us more not only about how the production and consumption of that product might have been more dispersed across time and space, but also about how laws and legal concepts themselves travel. While foods like “butter chicken” and “rasogolla/ rasagola” can help us raise these questions, “khadi” as a type of fabric touches a nerve of Indian national identity like no other commodity.
Recent Legal Battles of Khadi
Let us begin at the present. The 2010s saw the Khadi and Village Industries Commission (KVIC) challenging a German firm over the latter’s registering the word “khadi” as a European Union Trade Mark (EUTM). The premise of an EUTM is that a trademark registered in any member-state of the European Union applies to all other member-states’ territories. Thus, “Khadi” became something European and the KVIC was not pleased. The KVIC raised a pitched battle against the German firm in the relevant European courts but lost at every step of the way.
On 26 September 2016, the Cancellation Division of the EUIPO decided on all three cases and ruled against the KVIC’s objections (here and here). Its further appeals at the EUIPO’s Board of Appeals and subsequently at the European General Court met with the same effect by late 2018 (a convenient way of looking up all the relevant cases is to search for the nickname “khadi” at the European Union Intellectual Property Office (EUIPO)’s website with their “eSearch Case Law”. (I also discuss these issues in this podcast.))
The consistent line of arguments that the European courts upheld against the KVIC’s case, was that the German firm in question registered their trade mark in non-textile classes like toiletries and cosmetics. It was deemed that the intended customer would not be deceived of the origin of their products because even if they associated the word “khadi” with textiles and fabric from India, they certainly wouldn’t do so for bath or beauty products. Even Indian commentators on the subject, like the late intellectual property expert, Shamnad Basheer had been sceptical of the KVIC’s chances of success for this particular reason.
However, the very reason that the KVIC chose to sustain a legal battle on the issue was evidence of the heart of the issue lying outside the rationale of law or legal principles, strictly speaking. The history of treating “khadi” as a legal subject can help us understand some of these historically existing tensions and conflicts better.
Legal Pasts of Khadi
My research has led me to the history of the Khaddar (Name Protection) Act, 1934 (see page 73) (hereafter, KNPA) — a piece of legislation that fixed the meaning of khadi (or, khaddar, as it is also known as in several parts of India) as hand-woven and hand-spun cloth in India. It is well known that under the leadership of Mahatma Gandhi khadi became the most enduring symbol of the Indian nationalist movement. However, existing historical accounts of khadi do not usually refer to the history of the KNPA.
If we are to understand how the first legal attempts at fixing khadi’s geographical and commercial origin took place, it is important to recast the history of law into that of khadi and South Asia’s colonial past. Initially, the Bill was proposed in 1929 by Pandit Motilal Nehru, the prominent leader of the Indian National Congress at the Legislative Assembly in British India at the time. However, Nehru passed away in February 1931, after which another Congress leader, Gaya Prasad Singh took up the cause later that year.
In the modern British sense, trade marks communicate commercial origin to the customer but that was not always a given. For several British commentators and businesspersons, a trade mark also carried the meaning of signifying geographical origin. (see the chapter “The Making of Modern Trade Mark Law: The Construction of the Legal Concept of Trade Mark (1860–1880)” in this book (paywalled).
As explained in the above chapter, by 1888 in Britain, “trade description” as per the British Merchandise Marks Act, 1862, came to address criminal liability of forging marks related to origin taken as a singular concept that subsumed both geographical and commercial origin. Registering a trade mark in a particular place, or, in other words, maintaining a trade mark registry at a particular place implied the significance of that place as the origin of certain commodities. For the Indian nationalists however, in the 1930s, the best option available was defining khadi as a trade description. While these confusions could be claimed to have been solved at the legal plane back in England since the 1870s, the same could not be said to have been the case for British India. As these legal discussions took more concrete shape since the late nineteenth century and remained Eurocentric in their understanding of commerce and territory, indigenous commercial elites in India started emulating them.
British India got its first ever trade mark law only in 1940. In the absence of this law, the existence of which had been intensely debated among not only Indian but also British commercial organisations since at the late 1800s, Indian nationalists chose to define khadi as a “trade description” under the ambit of the Indian Merchandise Marks Act, 1889. This was an instance of sanctioning criminal action against fraudulent “khadi”.
Indian nationalists within the law-making circles of colonial India wanted to ensure that the gains that their larger political agitation had made in securing a market for Indian cloth manufacturers remained with the Indian weavers and spinners. The threat to authentic or “original” khadi was deemed to come from international manufacturers—particularly, Japan—as well as from domestic mills.
The Hand vs. the Mill
Opinion around the Bill (eventually the Khaddar Act) was extremely polarized with several Indian commercial bodies, including the Bombay Millowners’ Association (BMA), arguing against a legally sanctioned definition of khadi that made it something that could only be produced by hand. BMA and several others argued that at least since the late nineteenth century they had been producing mill-made khadi too. Moreover, the opposing voices claimed, that khadi was more a mark of coarseness of fabric, than of the production process. The Indian consumer, according to this argument, cared more about the material properties and the price of the fabric while making a purchasing decision than about whether or not it was called “khadi”.
The arguments led to a high-pitch battle between the proposer of the Bill, Gaya Prasad Singh, and H. P. Mody, the President of the BMA and also a member of the Central Legisative Assembly, at the time. While arguing against the Bill, Mody made an illuminating reference to trade marks. In his words,
Today it is sought to give a sort of legislative sanction to the use of the word “Khadi”. Tomorrow, in the interests of the hand loom weavers, somebody will come forward and say “We should have a trade mark in the word, sari or lungi or mulmul, because hand loom weavers have been manufacturing these cloths for centuries; and now the mills are manufacturing and competing; and so to preserve the hand loom weaver and in his interests we should have a sort of a trade mark in those words.” My objection is that you cannot justly introduce this principle, and if you introduce it, there may be no limit to its expansion.
Extract from the Legislative Assembly Debates, Vol VI, No. 1” in The Khaddar (Name Protection) Act, 1934 (Act No. VIII of 1934).
In India, in all likelihood, we would still be surprised if tomorrow some official body came into existence that became the sole certifying body for what a sari or a lungi is. Back in the 1930s, by invoking these as examples for which trade marks could not be sought, at a fundamental level, Mody connected the KNPA to the history of the absent trade mark legislation in British India. Mody clubbed khadi or khaddar with words such as sari, lungi, and mulmul to argue for the incomprehensibility of the principle of owning such generic words as trade marks.
Not only did Mody pose himself as an expert on the subject but also denied Indian nationalism its agency in doing just that. It was the BMA, after all, that had for the past sixty years almost led the crusade for enacting trade mark law in British India only to be thwarted by the textile industry of Manchester. Nevertheless, it did not look for sanction from the Government or the law, and had maintained its private registry of trade marks for its members since 1886 (see here, here and here).
Seen from Mody’s lens, he and his fellow members of the BMA knew what trade marks and attaching exclusive ownership to words meant. Singh and his nationalist colleagues, on the other hand, could not possibly comprehend the principles of advanced industrial property law-making. This, of course, went against the very premise of the nationalist proponents of the law which claimed that it was only because of their political action that the spinning and weaving “as a cottage industry” had witnessed a revival and become popular. Moreover, some industrialists like the members of the Factory owners’ Association of Berar favoured the Bill. The intended law was seen as a safeguard for India’s agrarian populations who engaged in spinning and weaving as “a source of additional income” and it finally became an Act on 13th March 1934.
Keeping the above facts about Khadi's origin in mind, Part II of the post will aim to build an argument asking for an interdisciplinary approach towards IP with the concept of"origin" as the central subject.
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