Business

You can't call it that, it doesn't come from here

Geographical Indication Protection in Jamaica

With LISA RHOOMS

Wednesday, April 17, 2019

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Some time ago, there was outrage on social media after a popular British chef referred to one of his creations as “punchy jerk rice”.

The controversy surrounded this chef's use of the word “jerk” in describing his product, which does not originate from Jamaica nor have any connection to Jamaica beyond “jerk” being used as a descriptor for the full flavour of his rice product.

Had the chef referred to his product using “Jamaica Jerk” however, he might have been out of the frying pan and into the fire by infringing one of Jamaica's first registered geographical indications (GI), “Jamaica Jerk”. GIs are, therefore, an essential intellectual property right, and this article seeks to explore what GIs are, how they work, and why registering a GI is so crucial.

You may have heard before that you cannot call sparkling wine “champagne” unless it originates from the Champagne region in France. This is because “champagne” is a protected GI, used not only to indicate the origin of the product, but also to indicate the certain high quality of any product to be described as “champagne”.

In Jamaica, GIs are protected under the Protection of Geographical Indications Act, and this Act defines a GI as “an indication which identifies a good as originating in the territory of a country, or a region, or locality in that territory, and where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin”.

What this means, simply, is that a GI tells a consumer of goods that the goods originate from a specific locale, and that, based on its originating from this specific locale, the consumer can expect a certain quality from that product.

In order to be eligible for protection, as with all other forms of intellectual property, an indication is required to meet certain criteria. These criteria include that the indication must fall within the definition of a GI, must not be contrary to public order or public morality, and for foreign GIs, the GI must not have ceased to be protected, or fallen into disuse in its country of origin.

What these criteria also indicate is that GI registration is not only limited to regions in Jamaica, but is available for GIs related to areas outside of Jamaica, so long as there is a valid registration in the country of origin.

Recently, this protection has been utilised as the Jamaica Intellectual Property Office (JIPO), on application from a Guyanese company holding the GI registration in Guyana, registered the GI “Demerara Rum”, to protect rum originating from Demerara, Guyana.

In Jamaica, an application to register a GI may be made by a producer of goods or a group of producers of goods carrying on activity in the geographical area specified in the application, with respect to the goods so specified. The application requires certain details — including name, address and nationality of the applicant, capacity of the applicant, the description of the GI for which registration is sought, specification of the goods to which the GI applies, and the quality, reputation and characteristics of the goods which the GI is to be used in relation to.

The application will also require submitting certain supplemental documents such as maps of the geographical area described in the application to JIPO. For foreign GIs, proof that the GI has been registered in the country of origin will also be required to be submitted with the Jamaican application.

GIs are critical for industries to protect their products.

In addition to “Jamaica Jerk”, “Jamaica Rum” is another registered GI, which seeks to protect the rum industry and its products.

Additionally, “Blue Mountain Coffee”, is a further example of a registered GI in Jamaica, and was granted to the Coffee Industry Board in order to facilitate the protection of the world renown quality and reputation of Blue Mountain Coffee.

Another potential GI, which has been hotly debated, is one to protect the produce and products of the local cannabis industry; however, to date, no such GI has been registered.

Therefore, if a person were to claim he produces goods from a specified area, and in fact his goods do not originate from the specified area, or meet certain criteria of the goods protected by the GI, this would be an infringement of the GI.

This is one of the reasons why GI registration is so important, as protection prevents a person from making a misleading claim as to the origin of his goods. GIs not only serve as an indication of locale, but as a badge of quality, which can, in turn, affect reputation. Therefore, GIs are critical to protect this reputation.

In Jamaica, the penalties in the legislation are indicative of how serious GI protection is, and more so, the seriousness of infringement. The Act provides essentially that, where a person uses a GI in a manner which misleads the public as to the geographical origin of the goods, this is an offence, and such person is liable, on summary conviction before a parish court, to a fine not exceeding $1 million or to a term of imprisonment not exceeding 12 months, or both. On conviction before a circuit court such person is liable to a fine or to term of imprisonment not exceeding five years, or to both.

GIs may not be among the more well known intellectual property rights in Jamaica, but this certainly does not diminish their importance. GIs are crucial tools for protecting goods which originate from certain specific areas and those which, by virtue of this locality, have acquired a reputation for a certain quality.

Therefore, the next time you hear someone say that a particular descriptor cannot be used in relation to a product because it does not originate from a specified country or region, it might be interesting to see if there is a GI behind that descriptor, because there might just be, and with that GI would come the various benefits of protection.

Lisa Rhooms is an associate at Myers, Fletcher & Gordon, and is a member of the firm's Commercial Department. Lisa may be contacted via lisa.rhooms@mfg.com.jm or www.myersfletcher.com . This article is for general information purposes only and does not constitute legal advice.


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