No sooner had stakeholders celebrated the introduction and acceptance of Geographical Indications (GI) as an intellectual property right than free riders, product imitators, and unfair competitors began making incursions into the GI space. With this development, there arose a multitude of products, which, although were not beneficiaries of GI protection, however, were posturing as such. In the words of Dwijen Rangnekar “the prestige and popularity of a GI is itself an invitation to competitors to enter the market with as close a substitute to the GI-product.”
This development had two major negative effects. First, the financial benefits meant to accrue to the owners of the GI protected products began dwindling because the free riders were taking advantage of the existence of the GIs to reap from where they had not sown. Second, the consumers began questioning the quality of the products they were consuming because they could no longer differentiate between genuine products that enjoyed GI protection and counterfeits/imitations.
In addition to the quality and genuineness concerns, further worries were also expressed about the safety of the products consumed. Therefore, to ensure the safety of the products, traceability was introduced into the food/feed and spirit/wine production processes.
The introduction of traceability into the processes of making GI products was with the expectation that it would serve two purposes. The authentication of the GI status of products and strengthening the safety of the products for human consumption, thereby increasing consumers’ trust in the GI products. Such trust that is established is expected will lead to increased financial commitment on the part of consumers.
Also, on a general note, the concept of offering protection to specific goods through GIs is non-existent in Nigeria, although there are ongoing conversations about the topic. It, therefore, becomes imperative that in the build-up to the development of frameworks for the recognition and protection of potential GI goods, emphasis is placed on traceability. The requirement for traceability is an established practice in Europe and other continents.
What are Geographical Indications?
In the simplest of terms, GIs are signs that link a product (or service) to a given place, which may be a country, a region, or an area. The term or concept was introduced into the intellectual property space in 1994 by the World Trade Organisation’s Agreement on the Trade-Related Aspects of Intellectual Property, otherwise called the TRIPS Agreement.
Article 22(1) of the TRIPS Agreement provides that “geographical indications are… indications which identify a good as originating in the territory of a Member, 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.”
Going by the definition above, a few indicative point can be deduced:
- GIs identify goods.
- The goods must originate in the territory of a member state to the TRIPS Agreement.
- The good must have a given quality, or reputation or any other characteristic which it has developed, due, majorly, to it originating from a particular geographical location.
The pertinent characteristic of GIs is that there must be a product-place relationship. The good or product must be linked to the place of origin, only then can such a good or product qualify for a GI.
By their nature, GIs occupy a special place in the intellectual property world. GIs are the only type of intellectual property rights that are collective in nature. They are collective in the sense that, unlike all other forms of intellectual property rights, the ownership of a GI does not reside in individuals, but a community. Therefore, every producer within the delineated geographical area potentially has a claim to the GI.
However, the claim is subject to the producer showing a willingness to subject himself/herself and his/her product to the regulations guiding the grant of the GI.
Why is it important that producers and actors seeking benefit from a GI, submit themselves to the standards set by the regulatory authority? The World Intellectual Property Organization provides an answer.
“Geographical indications are understood by consumers to denote the origin and the quality of products. Many of them have acquired valuable reputations which, if not adequately protected, may be misrepresented by dishonest commercial operators. False use of geographical indications by unauthorised parties is detrimental to consumers and legitimate producers. The former are deceived and led into believing to buy a genuine product with specific qualities and characteristics, while they in fact get a worthless imitation. The latter suffer damage because valuable business is taken away from them and the established reputation for their products is damaged”. World Intellectual Property Organisation: Note on Geographical Indication.
How do Geographical Indications derive their names?
A common feature of GIs is that they often consist of the names of the places they originate from – for example, Champagne, Rooibos Tea, Karoo Lamb of South Africa, etc. However, one must be quick to point out that other forms of indications are allowed, going by the definition offered in the TRIPS Agreement, as long as such indications link the good to the geographical origin.
One will thus naturally understand that a good that has the Eiffel Tower as its indication originates in Paris, or a good bearing the Big Ben finds its origin in London. However, there are indications, which are neither names of territories, regions, localities, nor iconic symbols and emblems, but relate to a specific geographical area and are used to designate particular goods originating from a country, region, or locality. This third type of indication finds acknowledgement in The Indian Geographical Indications of Goods (Registration and Protection) Act, No.48 of 1999. One of such Indication is the Basmati, which is used in relation to a variety of long grain rice grown in India and Pakistan, notable for its fragrance and delicate, nuanced flavour. Another example of such indication is the Feta Cheese, which originates in Greece.
How Are Geographical Indications Developed?
The development of a GI is more often than not guided by a Code of Practice. According to the Food and Agriculture Organization, “The code of practice (CoP) is a document establishing the rules for the use of a GI. Its elaboration is a crucial step, leading to the voluntary “standard” or specifications with which local producers who want to use the GI have to comply.”
Furthermore, “the aim of the CoP is then to provide rules for applying the specific quality to the GI producers located in a delimited area. Therefore, it must describe the specific characteristics of the GI product which are attributable to its geographical origin, justifying the link between the product and the territory (the same product cannot be elaborated in other territories). It must explain how a given quality (the specific attributes that make the product different from others of the same category), a reputation (history of the product, past reputation, current reputation) or other characteristics (for instance know-how) are linked to the origin.”
Basically, a Code of Practice should contain the following:
- The name of the product being considered for a GI and the potential GI name(s),
- A description of the product (this includes the key physical, biological and chemical characteristics, the ingredients and raw materials to be used in the production process.),
- The definition of the geographical area delimited for the production of the product,
- A description of specific characteristics (quality, reputation or other characteristics) which can be attributed to the geographical origin, otherwise referred to as the product/place link,
- A definition of the process of production (from raw material to final packaging),
- Control measures (specifications, certifications, details of the organisation or body in charge of the control system, etc),
- Labelling and traceability systems.
Upon the development of a CoP, however, it is important that there is a law in place; either Sui Generis or a Trademark Law (which recognises collective marks and certification marks), to ensure that adequate protection is given to the producers and their products, while also serving as a deterring factor for third parties who seek to illegally appropriate and benefit from the premium attached to the GI protected goods.
See Part II of this essay here.
