Business

Gov't moves to protect Jamaican products in global markets

BY BALFORD HENRY
Senior staff reporter
balfordh@jamaicaobserver.com

Sunday, December 10, 2017

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Minister of Industry, Commerce, Agriculture and Fisheries, Karl Samuda, says the ministry is seeking to have Jamaica's geographical indications (GIs) accord with the highest level of protection available under the World Trade Organization Agreement on Trade Related Aspects of the Intellectual Property Rights (TRIPS).

Currently, the standard level of protection accorded to goods other than wines and spirits is restricted to whether the public is being misled by the designation and presentation of the goods, and whether unfair competition has occurred.

A geographical indication (GI) is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. Currently the only Jamaican product that is protected as a GI is the use of “Jerk”.

In order to function as a GI, a sign must identify a product as originating in a given place. In addition, the qualities, characteristics or reputation of the product should be essentially due to the place of origin. Since the qualities depend on the geographical place of production, there is a clear link between the product and its original place of production.

But according to the minister, the current standard enables the abuse of indigenous Jamaican GI goods, in instances where the country's name is used without authorisation, but are accompanied by expressions denoting its true origins, for example, “Jamaica Style Jerk Chicken Produced in China”.

He said that the result is that foreign competitors are able to misappropriate the country's reputation, thereby usurping a considerable share of the market from legitimate producers and manufacturers in the country. Furthermore, he said that the current regime leads to a plethora of imitation of Jamaican products in the market.

He said that, accordingly, a draft Bill, which he tabled in the House of Representatives on Wednesday, will provide an absolute level of protection on geographical indications of all goods, including wines and spirits.

The Bill points out that, currently, the Geographical Indications Act 2004, and the Protection of Geographical Indications regulations 2009 have given effect to certain provisions of the World Trade Organization's Agreement on Trade Related Aspects of the Intellectual Property Rights (TRIPS) Agreement.

One of the requirement of TRIPS is that all WTO member countries establish provisions for the protection of Geographical Indications (referred to as GIs). Article 22.2 of the agreement provides a standard level of protection for GIs limited to the principles of unfair competition.

Consequently, this new provision of the agreement permits use of a GI, when the product does not actually originate in the place indicated by the GI, but the foreign location of the product is mentioned in combination with the name of the product, or the geographical indication is accompanied by expressions such as “kind”, “type”, “style” and “imitation”.

However, in contrast to that, Article 21.3 of the agreement provides for an absolute level of protection on GIs wines and spirits and is not restricted to whether the public is misled, or whether unfair competition occurs.

This protection for wines and spirits is considerably more enhanced, in comparison to that provided in article 22, for other products, and grants a higher level of protection to wines and spirits that is not granted to other products.

The crucial difference, the Bill says, between article 22.2 and 23.1 is that there is a higher level of protection under Article 23.1, thereby preventing a designation or a product as being made other than in the place of true origin.

The Bill, therefore, seeks to amend the Protection of Geographical Indications Act, 2004, to:

(a) extend protection under Article 23 of the TRIPS Agreement to all goods inclusive of wines and spirits;

(b) provide for establishment of a Geographical Indication Advisory Committee; and

(c) provide for the use of the Intellectual Property Journal.

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