Global IP Matrix - Issue 5

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Examples of well-known Geographical Indications include “Darjeeling Tea,” “Persian Rugs,” “Swiss Watches,” “Champagne” and from Nigeria, (though no provision has been made for the registration of GI), one can think of “Ofada Rice” and “Dongoyaro Tea.” While most often used in food products, Geographical Indications can be used to identify unconsumable products that may be associated with a specific geographic location. 4 is made in Article 1 (2) and Article 10 of the Paris Convention, where the latter Article in dealing with false indications of goods, states that the provisions dealing with goods unlawfully bearing a trademark and their seizure: “…shall apply in cases of direct or indirect use of a false indication of source of the goods or the identity of the producer, manufacturer, or merchant.” Any producer, manufacturer, or merchant, whether a natural person or a legal entity, engaged in the production or manufacture of/ or trade in such goods and established either in the locality falsely indicated as the source, or in the region where such locality is situated, or in the country falsely indicated, or in the country where the false indication of source is used, shall in any case be deemed an interested party. as climate, soil, or traditional methods of production, etc. 8 The term “appellation of origin” is mentioned in Article 1(2) of the Paris Convention and is defined in Article 2 of the Lisbon Agreement thus: “Appellations of origin means the geographical name of a country, region or locality, which serves to designate a product originating therein, the quality and characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors. The country of origin is the country whose name or the country in which is situated the region or locality whose name constitutes the appellation of origin which has given the product its reputation”. Three elements are identifiable in the above definition: 9 The use of Geographical Indications allows producers to obtain market recognition and often a premium price. With the increased internationalisation of food and product markets, Geographical Indications have become a vital source of marketing. Geographical Indications are also often associated with non-monetary benefits such as the protection of knowledge and community rights. 5 In order to fully understand the meaning of Geographical Indications and how the term is derived, there are at least two other important concepts linked to the idea of Geographical Indications that must be analysed, these being; “indication of source” and “appellation of origin.” Long before a multilateral agreement was reached on the definition of Geographical Indications, and how they are to be protected, i.e., TRIPS Agreement; the concepts of “indication of source” and “appellation of origin” were incorporated in other international treaties. These are: the Paris Convention for the Protection of Industrial Property of 1883 (Paris Convention), the Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods of 1891 (Madrid Agreement), and the Lisbon Agreement for the Protection of Appellations of Origin and their International registration of 1958 (Lisbon Agreement). 6 i. INDICATION OF SOURCE Indication of sources refers to a sign that indicates that a product originates in a specific geographical region.6 An example being, Ofada Rice, which refers only to geographic origin. It is the broadest concept when compared to Geographical Indications and appellations of origin and appears in both the Paris Convention and the Madrid Agreement. Neither agreement, however, defines indication of source. Reference Further clarification of the notion of “indication of source” is found in Article 1(1) of the Madrid Agreement: “All goods bearing a false or deceptive indication by which one of the countries to which this Agreement applies, or a place situated therein, is directly or indirectly indicated as being the country or place of origin shall be seized on importation into any of the said countries.” Article 1(2) of the Paris Convention defines objects for the protection of industrial property and refers to both “indication of source” and “appellation of origin,” which may suggest that both expressions could be synonymous. There are, however, distinct differences between the two. ii. APPELLATION OF ORIGIN This refers to a sign that indicates that a product originates in a specific geographical region only when the characteristic qualities of the product are due to the geographical environment, including natural and human factors. 7 Unlike an indication of source, which is only subject to the condition that a given product originates in the place designated by the indication of source, the use of appellation of origin requires a quality linkage between the product and its geographical origin. This means that certain characteristics of the product should be essentially or exclusively attributable to its geographic origin, such 22 www.gipmatrix.com a. The appellation must be a direct geographical name (not symbols or other kinds of expression) of the country, the region or the locality. b. The appellation must serve as a designation of the geographical origin for the product, which means that the product and geographical name must be the same, such as Porto or Bordeaux; c. The quality and characteristics exhibited by the product must be essentially/ exclusively attributable to the designated area of geographical origin. Relative to the Madrid Agreement, these conditions for qualifying appellations are higher, thus narrowing the range of possible indications. An example of protected appellations under the Lisbon Agreement includes ‘Bordeaux’ for wine. The African Landscape Geographical Indications, taken as any geographical name or sign affixed to a good which conveys geographical information that is useful in identifying the origin, reputation and qualities of the product can be legally protected in two primary forms in Africa. Defensive protection, which focuses on the prevention of misleading indications and unfair competition and positive protection involving the registration of a Geographical Indication either through a sui generis system or as trademarks. The legal means for obtaining defensive protection would mainly be through unfair competition laws, common law rules on passing off or case law. There exists the possibility of obtaining positive Geographical Indication protection, in one form or another, in all but six African countries. 10 For these six countries, there is no positive protection available, or there is no reliable information on whether positive Geographical Indication protection can be obtained. Among the 47 countries where there is some level of positive protection, such protection can be obtained under
one of two legal regimes. Protection can either be through specific Geographical Indication laws or through trademark regimes where protection of certification or collective marks is possible. 11 Also, 23 of the 47 countries mentioned above have specific laws providing Geographical Indication protection while in South Africa, there is sui generis Geographical Indication protection for only wines and spirits pursuant to a bilateral agreement with the EC. 12 Of the 23 countries with sui generis Geographical Indication laws 13, 16 are Members of the African Intellectual Property Organisation (OAPI) and therefore have the same Geographical Indication law.14 In the remaining 24 countries, positive Geographical Indication protection can only be obtained through certification or collective trademarks under national trademark laws. 15 The increased international awareness that exists in the GI space, suggests that many of the countries which currently only provide trademark protection for Geographical Indications are likely to move towards specific sui generis laws. However, though much locally in use, GIs are not generally recognised in Africa as protectable. The free to use communal nature of most African societies work against most attempts to have any form of proprietary right attached to available Geographical Indications. As a predominately agriculturalbased economy, wise counsel will prevail, if most African states incorporate the protection of Geographical Indications into their legislations. African Union 2 World Intellectual Property Organisation. www.aopi.wipo.net/fr/OAPI/index.htm 3 Larson, J. Relevance of geographical indications and designations of origin for the sustainable use of genetic resources. Food and Agriculture Organization (FAO), Rome, (2007) 4 Uwanna, I. Intellectual Property: A Valuable Asset to Every Company, ‘n.d.’ i.uwanna@ta-ng.com 5. See www.geographicindications.com 5 Papadopoulos, I. An Economic Analysis of the Welfare Implications of Geographical Indications, World Trade Institute, (2003) 6 Blakeney, M. “Proposals for the International Regulation of Geographic Indications,” The Journal of World Intellectual Property, Vol.4, No. 5, (2001) 631 7.Keith, E. M. Observations on the Development Potential of Geographical Indications. U.N. Millennium Project Task Force on Trade. March (2003) 8 Sergio, E. International Protection of Geographical Indications and Developing Countries, South Centre Working Paper 10, (2001) 3 9 Rangnekar, D. The socio-economics of geographical indications. A review of empirical evidence from Europe, UNCTAD/ICTSD, Issue Paper 8. (2004) 10 These countries are Cape Verde, Comoros, Djibouti, Eritrea, Sao Tome & Principe, and Somalia. 11 In many countries, it is possible to obtain trademarks with geographical references in certain circumstances. However, these are mostly particular types of trademarks which could either be collective or certification marks. There are several reasons for this. These include the fact that trademark law generally prohibits the registration of purely descriptive words and forbids misleading the consumer through the trademark itself. For further discussion see, e.g., Larson (2007) 12see http://europa.eu/scadplus/leg/en/lvb/r12207. htm (last visited on 27 August 2011. 13 Thompson, L. R., and Bukman, P. Geographical Indications. International Food & Agricultural Trade Policy Council (IPC), Washington, DC: USA. (2003) www.agritrade.org 14 Wikipedia, Geographical Indication. Wikimedia Foundation Inc., (2007) www.en.wikipedia.org. Last visited on 8 August 2011 at 2.39 PM. 15 The rationale of the ‘extension’ is that geographical indications for all products deserve the same level of protection, i.e., the one which applies currently is limited only to wines and spirits. In order to establish such uniform protection for all products and extend the additional protection of Article 23.1 of the TRIPS Agreement to other products, it is proposed to remove the reference in Article 23.1 of the TRIPS Agreement to wines and spirits. SafariRenewals . . . P r e s e r v i n g Y o u r R i g h t i n A f r i c a Safari Renewals LTD is a leading Intellectual Property NIPB renewal company in Africa handling IP renewal services in all African countries Nincluding OAPI and ARIPOB+ The company was primarily established to provide high quality and affordable IP maintenance services to the African community+ Falomo1Ikoyi6 Lagos Nigeria P+O+Box @6464 5078ON3B 738 678 34866O5078ON3B 847 033O@867 renewals@safarirenewals+com www.gipmatrix.com w w w + s a f a r i r e n e w a l s + c o m 23
Page 1 and 2: www.gipmatrix.com 1
Page 3 and 4: CONTENTS Page 4 Don’t sugar-coat
Page 5 and 6: A23V2002/00 Food compositions, func
Page 8 and 9: Patent Linkage and Indian Laws Bio:
Page 10 and 11: Can a thorough search help you gain
Page 12 and 13: 12 www.gipmatrix.com
Page 14 and 15: The road ahead for autonomous vehic
Page 16 and 17: 2019 TITLE SPONSOR 14 October 2019
Page 18 and 19: TRADEMARKS Main Changes of the New
Page 21: GEOGRAPHICAL INDICATIONS: THE AFRIC
Page 25 and 26: Since 1992 …… Protect your IP o
Page 27 and 28: J. Varbanov & Partners European and
Page 30: Every IP attorney also needs to be
Page 35 and 36: 12th Edition GIPC Media Partner “
Page 38 and 39: NOTES..............................
Page 40: Don’t miss the obvious... ...or t

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