16/02/2022

COP26 • 23 DE NOVIEMBRE DE 2021 - PREGUNTA AL CONSEJO DE PEDRO MARQUES (PARLAMENTO EUROPEO) – [E-005230/2021]

 

 

El resultado de la COP26 estuvo muy por debajo de lo que era necesario. 

Ante toda la evidencia y todas las palabras dichas, el mundo tuvo otra oportunidad de actuar en consecuencia, asumiendo compromisos firmes e irrevocables para combatir el cambio climático. 

La realidad resultó diferente. La evidencia presentada y los discursos pronunciados no se recogieron en el resultado de la Cumbre del Clima, que culminó en un acuerdo de minimis de “último minuto”. 

Cada día que pasa queda más claro que la Unión Europea debe tomar la iniciativa en esta lucha. 

Por lo tanto, pregunto: ¿Qué iniciativa política está considerando el Consejo para abordar el resultado inadecuado de la COP26?

 

Respuesta (14 de febrero de 2022): 

«El 20 de diciembre de 2021, la Presidencia y la Comisión informaron al Consejo sobre varias reuniones internacionales recientes, incluida la cumbre climática COP26.(1)

La COP26 representa un importante paso adelante en la acción climática global. Después de dos semanas de intensas discusiones, las Partes se fueron de Glasgow con un sólido reglamento de París y una ambición climática global fortalecida, cerrando aún más la brecha con los objetivos a largo plazo del Acuerdo de París. En la COP26 se lanzaron varias iniciativas importantes, como el Compromiso Global de Metano. Además, el Pacto Climático de Glasgow hizo historia con la inclusión de un lenguaje que pedía una reducción gradual de los subsidios ineficientes al carbón y a los combustibles fósiles.

En vista de la creciente ambición en materia de mitigación, se ha pedido a las Partes que presenten objetivos para 2030 alineados con París en 2022 y se convocará una mesa redonda ministerial anual de alto nivel sobre la ambición anterior a 2030 a partir de 2022.

La UE seguirá trabajando arduamente con las demás Partes sobre mitigación, adaptación y financiación para garantizar que se mantenga un nivel adecuado de ambición global, lo que nos permitirá mantener los objetivos de París, en particular el objetivo de 1,5 °C, al alcance.».



Traducción no oficial. Lengua original: portugués.

(1) Meeting information available at: https://www.consilium.europa.eu/en/meetings/env/2021/12/20/ 


05/02/2022

New breeding techniques and regulation of GMOs: South African update

 


Introduction

In 2019, the scope of the South African Genetically Modified Organisms Act 1997 (the GMO Act),(1) as amended by the Genetically Modified Organisms Act 2006,(2) in relation to new breeding techniques (NBTs) was explored and recommendations were made (for further details, please see "New breeding techniques and regulation of genetically modified organisms"). NBTs include many now popular and commonly used tools for genome editing, including clustered regularly interspersed short palindromic repeats (CRISPR).

Fundamentally, the debate related to whether NBTs and products arising from NBTs were subject to the current regulatory system governing genetically modified organisms (GMOs). The main question was related to the definition of GMOs in the GMO Act and which organisms fall within this definition and therefore must be regulated as GMOs in terms of the GMO Act, and which organisms will be excluded from the application of the GMO Act.

The GMO Act defines a GMO as "an organism the genes or genetic material of which has been modified in a way that does not occur naturally through mating or natural recombination or both".

The regulation of organisms created through NBTs and the characterisation of such organisms, or products derived from them, creates difficulties in that since such organisms do not necessarily incorporate genetic material from another organism in their genome, it can be extremely difficult to determine whether organisms were created by conventional breeding or random mutation, or that the organisms were indeed created through NBTs.

Recent development

In a public notice published on 27 October 2021, the position in South Africa was clarified by the Executive Council under the GMO Act, in which it was concluded that the current risk assessment framework that exists for GMOs and products derived from GMOs would also apply to organisms created through NBTs.

The Executive Council consists of representatives of seven different departments within the South African government and is an advisory body to the Minister of the Department of Agriculture, Land Reform and Rural Development (DALRRD) on matters relating to GMOs. The Executive Council is also the decision-making body that approves or rejects GMO permit applications.

Accordingly, the application templates for contained use, trial release, commodity clearance and general release of GMOs have been revised and there are now revised application forms for GMO permits.

Key concerns

The decision by the Executive Council has met with some criticism and disappointment within the agricultural industry in South Africa. This strict approach to organisms created using NBTs is contrary to the practices followed in several other countries in the world – most particularly, Brazil, Argentina, Japan and Israel – and has been argued to be onerous and impractical.

In particular, some agricultural industry concerns that have been raised include that:

  • local innovators developing organisms created with NBTs or products derived from these organisms may be discouraged from developing NBT technology, in turn resulting in local innovation in the production of new and innovative plant varieties that make use of such techniques for pathogen resistance, drought tolerance and the like falling behind;
  • the ability of local farmers to access such NBT organisms may be detrimentally affected, in turn resulting in similar challenges with regard to pathogen resistance, drought tolerance, and sustainable and environmentally conscious farming;
  • foreign entities involved in the development of NBT organisms or products may be discouraged from importing such organisms or products into South Africa, to the detriment of the South African industry and consumers, and particularly in relation to food products. This could, at worst, result in food insecurity; or
  • alternatively, products derived from NBT organisms may be imported into South Africa without proper regulatory approval, and since it is so difficult to characterise such products as derived from an NBT, there would be an unfair advantage created for unscrupulous entities.

This has led to an appeal under section 19 of the GMO Act by the Agricultural Business Chamber, which is engaging with DALRRD and the Executive Council to try to develop an alternative, effective, efficient and evidence-based regulation of products derived from NBTs. The proposal is that organisms generated through NBTs should not be subject to regulation under the GMO Act if they are identical to, or indistinguishable from, products that could have been obtained naturally or through conventional breeding methods.

The alternative approach proposed in the appeal is similar to a previously proposed approach in that rather than blanket regulation of non-natural processes (including the use of NBTs) for genetic modification of organisms, or the organisms created by such processes, provision should be made, within a system that is both process- and product-triggered, for regulation to focus on genetic modification that is likely to be more harmful, hazardous or risky to the environment, human and animal health than that which might be achieved by natural mating or natural recombination. This type of assessment could be performed by the regulator on a case-by-case basis, taking into account information provided by an applicant through a preliminary notification procedure.

Comment

Given the importance of NBTs in the development of new-generation plant varieties having improved properties in relation to pathogen resistance and drought tolerance, and to facilitate sustainable and environmentally conscious farming, the outcome of the appeal is awaited with much anticipation.

For further information on this topic please contact Joanne van Harmelen at ENS Africa by telephone (+27 21 410 2500) or email (jvanharmelen@ensafrica.com). The ENS Africa can be accessed at www.ensafrica.com.

Endnotes

(1) Act No. 15 of 1997.

(2) Act No. 23 of 2006.

01/02/2022

INDIA: Food Wars of 2021

Innovation is vital for the survival and productivity of every industry in the market, and the catering and hospitality industry is no exception. The packaged food industry has evolved to keep up with consumer expectations. Trademark selection and registration is vital for any packaged food company in order to build & protect its reputation.

Throughout 2021 there have been several disputed intellectual property wars with regards to Trademarks and a dramatic spike in the number of trademarks filed for registration.

 The trademark feud between ITC Limited and Nestle India Limited illustrates the type of wars fought in the battlefield of the Courts, the venue in this case was the Madras High Court. In 2021, the Madras High Court put an end to a 6 years-long battle over the use of the phrase “Magic Masala”. The issue before the Court was whether the phrase qualifies as a trademark and is it capable of being monopolized?  Generally, descriptive words or phrases ought not to be protected as trademarks. However, they can be registered if they attain any secondary meaning identifying a specific product. In this case therefore, what the Court had to see was whether the words “Magic Masala” was capable of distinguishing the goods of ITC Limited.

The Madras High Court held that the words “Magic” and “Masala” are words used in common parlance in the food industry and their adoption by Nestle cannot be said to be mala fide. The Hon’ble Court referring to Section 9(1) of the Trade Marks Act, 1999 which prohibits the registration of generic marks, held that it was a legitimate adoption by Nestle as no person can appropriate generic or laudatory words and such words cannot be monopolized by one person.

The next war was waged on the battlefield of the Delhi High Court. The protagonists were Britannia Industries Ltd and ITC Limited. The issue involved was the use of packaging by ITC for their digestive biscuits under their brands “Sunfeast Veda Digestive” and “Sunfeast 5-Seed Digestive”. Britannia claimed that the trade dresses of ITC’s biscuits were similar to that of Britannia’s “Nutri Choice Hi-Fibre Biscuits”. (The respective labels are included in this article for academic purposes.)

The Delhi High Court after considering the submissions of both the parties held that the packaging of both products was not similar so as to cause any deception or confusion. The Court was of the opinion that the test for a case of infringement or passing off is that of confusing or deceptive similarity in the minds of the public at large, and the courts must focus upon as to whether there is an extent of deceptive similarity between the marks irrespective of their individual dissimilar features, and that the approach must emphasize upon the similarities, rather than the dissimilarities between those marks. Therefore, relying upon a few precedents, the Court dismissed Britannia’s claims through its judgment dated April 5, 2021.

              
                               

*We claim no copyright rights in the above image. It has been used for representational and academic purposes only.

A recent update in the case is that Britannia Industries had filed an appeal against the judgment to the Division Bench of Delhi High Court on the grounds that impugned judgment was being publicized heavily and thereby causing a loss of its goodwill and reputation. During the pendency of the appeal, ITC Ltd. made modifications to their packaging of the ‘Sunfeast Farmlite 5-Seed Digestive’ and ‘Sunfeast Farmlite Veda Digestive’ biscuits as to which Britannia had no objection. Accordingly, vide the judgment dated 4th August 2021 the matter was considered amicably resolved between the parties and Britannia Industries withdrew all claims for rendition of accounts, damages, and costs.

In another war fought again on the Delhi High Court battlefield between FDC Ltd. and Faraway Foods Pvt. Ltd.; the contours of “deceptive similarity” were put to test in order to determine the extent of infringement. FDC claimed to have coined and adopted the trade mark "MUMMUM" for infant foods. Faraway adopted the mark “the Mumum Co.” for snack foods. FDC contended that Faraway’s mark was similar visually, structurally and phonetically to its mark. It was held that the products of Faraway could not be consumed by infants, who are the end-users of FDC Ltd. and thus there is no overlap. It is an established principle that a trademark applied on the products which do not have the same end-users as a registered trademark cannot be said to be infringing. Except for the phonetic similarity between “MUMMUM” and “MUMUM”, no prima facie case of infringement was made out and therefore, the Delhi High Court refused to grant an interim injunction to FDC Ltd.

                                

*We claim no copyright rights in the above image. It has been used for representational and academic purposes only.

Another instance was that of Victoria Foods Pvt. Ltd. v. Rajdhani Masala Co.; Victoria claimed to have conceived and adopted the trademark “Rajdhani” for food products, condiments, confectionery. Whereas Rajdhani Masala Co. was engaged in the business of spices under the trade names “Rajdhani Masale Co.” and “New Rajdhani Masala Co.”. In this case, the Delhi High Court granted an interim order restraining Rajdhani Masala Co. from using the trademark “Rajdhani” on the grounds of deceptive similarity. The Court concluded that the Victora had established a prima facie case in its favour.

The food industry is highly dependent on brand value. Selection of a brand and its proper protection is cardinally important for this industry. Wrong selection and adoption of a trademark and the packaging material including the colour scheme and the features used on the packaging must be carefully examined before introducing the product in the market place.