Protecting Geographical Indications

Author:Ms Dianne Daley and Nicole Foga
Profession:Foga Daley
 
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After a five-year wait, the eagerly anticipated Geographical Indications Act came into force on June 8 2009, having originally been passed into law in 2004. This was followed in relatively quick succession by the Geographical Indications Regulations, promulgated on September 9 2009, which effectively brought the act into operation.

The requirement to provide special legal protection for geographical indications (GIs) initially arose as one of several IP rights obligations under the World Trade Organisation (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), when Jamaica became a WTO member on January 1 1995. However, what was then a relatively alien concept is now considered to be one of the most important forms of IP protection for Jamaica's national brand.

The regulations resulted from the work of the Jamaica Intellectual Property Office (JIPO), assisted by the Swiss Federal Intellectual Property Institute (IPI), in a two-year project between the two offices which commenced in July 2008. Under the project, the IPI has been helping the JIPO to establish a functional and effective GI system, which it is believed will better position quality authentic Jamaican products on the national and international markets.

This chapter provides a synopsis of the act and highlights areas of deficiency as well as progress.

Meaning of GIs

GIs are geographical names, signs or symbols used on or in association with a product which possesses a special quality, characteristic or reputation that is essentially attributable to its origin. World-famous GIs such as 'champagne', 'tequila', 'Scotch', 'Basmati rice', 'Havana cigars' and 'Darjeeling tea' readily denote a certain quality, characteristic and/or reputation that derives from their origin.

The act ascribes the same scope and meaning to GIs as adopted by TRIPs and implements its provisions. 'GIs' are defined under the act as indications which "identify a good as originating in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin".

Protection

The act provides that any interested party may apply to the Supreme Court to prevent false and misleading uses of a GI - that is, use in the designation or presentation of a good which indicates or suggests that it originates in a particular place which is not the true place of origin and so misleads the public as to the true geographic origin. Interested parties may also prevent the use of a GI which amounts to unfair competition within the meaning of the Fair Competition Act. 'Goods' mean any natural or agricultural product or any product of industry or handicraft.

In relation to wines and spirits, interested parties may also prevent the use of GIs for goods that do not actually originate in the place indicated by the GI, even where the true place of origin is indicated and even where used in conjunction with terms such as 'kind', 'style' or 'imitation' (eg, 'champagne made in Jamaica' or 'imitation champagne'). Similar to Article 23(1) of TRIPs, this enhanced form of protection granted under the act applies only to wines and spirits.

Protection...

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