The connections between Geographical Indications (GIs) and sustainable development are increasingly becoming a focal point of discussions concerning the global developmental agenda. This is to be expected in an era where intellectual property (IP) is increasingly becoming recognized as the “oil of the 21st century”. As such, there has been a proliferation of studies exploring (both directly and indirectly) the connections between GIs and sustainable development, particularly in the developing world. Critically, such research asserts that when properly leveraged GIs can promote environmental, economic, socio-cultural, and, by extension, sustainable development (Petra Van de Kop, Dennis Sautier, Astrid Gerz and Paul Mundy, ‘Origin-based products: Lessons for pro-poor market development’ (2006) The Royal Tropical Institute-KIT Vol.372; Giovanni Belletti, Andrea Marescotti, Javier Sanz-Canada and Hristos Vakoufaris, ‘Linking protection of geographical indications to the environment: Evidence from the European Union olive-oil sector’ (2015) 48 Land Use Policy 94).
According to Article 22(1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (as amended on January 23, 2017) (“the TRIPS Agreement”) GIs are “indications which identify a good as originating in the territory of a [WTO] Member, or region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.’ In essence, they identify a good as originating from a specific geographical region with the quality and given reputation of the good being essentially attributable to its geographical origin. Importantly, GIs are considered to be intellectual property rights (IPRs) which, strictly speaking, confer an IPR upon the country or geographical region from which the GI-designated product originates, and therefore implies the existence of some unique quality or reputation belonging to the good that is attributable to the country or geographical region from which the good originates. Despite also having “an identification function”, GIs are not to be confused with trademarks since ‘unlike trademarks, which distinguish the goods of one enterprise from those of another, GIs identify the “location from…[which]…the good originates.’ (World Trade Organization, ‘Module IV: Geographical Indications’, page 74).
With respect to the distribution of GIs worldwide, the World Intellectual Property Organization (WIPO) has surmised that in 2018 there were approximately 65,900 protected GIs in existence worldwide. This figure was calculated using “data received from the 92 national/regional authorities that shared their data. With regard to regional distribution, WIPO reported that “…Europe had the largest number of GIs in force across all regions, accounting for 57.4%, followed by Asia (28.3%) and Latin America and the Caribbean (8.4%).” (WIPO Indicators (2019), “Geographical Indicators”, page 180).
GIs in the Jamaican Context
At present, Jamaica (in its usual style) leads the Caribbean with three (3) geographical indications having already been registered locally. Trailing rather far behind is Trinidad & Tobago with only one (1) registered GI, and still further behind the remaining countries of the Commonwealth Caribbean, all of which have no documented GI registrations.
The inauguration of GIs in Jamaica had its formal inception moment in 2015, with the first-ever GI being registered locally in that year, their antecedents in Jamaica can be traced back to 2008 when the Jamaican Government of the day signed a Memorandum of Understanding (MoU) between the Jamaica Intellectual Property Office (JIPO) and Switzerland’s Federal Institute of Intellectual Property (IPI). The “Geographical Indications (Technical Cooperation) Project” was aimed at assisting Jamaica to ‘…establish a functional and effective protection system for Geographical Indications to better position Jamaican quality products on national and international markets, using distinctive signs.’ The “Geographical Indications (Technical Cooperation) Project” was implemented from July 2008 to June 2010. Among the products identified by the organizers of the project for protected GI status were Jamaica Jerk, Jamaica Rum, and Blue Mountain Coffee (Jamaica Intellectual Property Office, Geographical Indication Manual 2015, page 7).
On November 5, 2009, JIPO partnered with the IPI to host what was the first of four workshops on the administration of the proposed GI system. The “Geographical Indications (Technical Cooperation) Project” ultimately paved the way for the registration of Jamaica’s first GI— “Jamaica Jerk”— by the Jamaica Jerk Producers Association (“the JJPA”) on September 30, 2015. The “Jamaica Jerk” GI is open for use by any member of the JJPA so long as they comply with the requirements stipulated by the Jamaican Jerk Code of Practice. Following the registration of the “Jamaica Jerk” GI, the “Jamaica Rum” GI was registered by the Spirits Pool Association Limited on December 1, 2016 (Jamaica Intellectual Property Office presentation titled ‘Jamaica’s Geographical Indications (GI) Protection System’ at slide 8).
Protection of GIs in Jamaica
Broadly speaking, the ‘[p]rotection of GIs is conceived as a tool for protecting the legitimate users of geographical names in designating all kinds of goods—although generally referring to agri-food products—against imitations and frauds.’ (Giovanni Belletti, Andrea Marescotti, Javier Sanz-Canada, and Hristos Vakoufaris, ‘Linking protection of geographical indications to the environment: Evidence from the European Union olive-oil sector’ (2015) 48 Land Use Policy 94, page 4).
At present, there are various mechanisms that have been implemented to protect GIs in Jamaica with a view to promoting and preserving the integrity of “Brand Jamaica” locally, regionally and internationally. On the legal side, Jamaica has adopted a sui generis legal system for protecting GIs. This sui generis legal system is comprised of the Protection of Geographical Indications 2004, which came into effect on June 8, 2009, after a five-year wait (Dianne Daley and Nicole Foga, ‘Jamaica: Protecting geographical indications’ in Building and enforcing intellectual property value, 2011, page 90), and the Protection of Geographical Indications Regulations, which was promulgated in 2009 (hereinafter jointly referred to as “the Protection of Geographical Indications Law”). Jamaica’s enactment of the Protection of Geographical Indications Law was consistent with its obligations pursuant to Article 23 of the TRIPS Agreement as well as Article 145 of the CARIFORUM-EU Partnership Agreement (EPA).
Under the Protection of Geographical Indications Law, a producer or producer group operating within a particular geographical area can make an application for GI registration in respect of the goods specified in the application. The application for registration of a GI requires the inclusion of certain details relevant to the GI sought to be registered. Such details include the name, address and nationality of the applicant, the capacity of the applicant, the description of the GI for which registration is sought, specification of the good(s) to which the GI applies, and the quality, reputation, and characteristics of the goods in respect of which the GI is to be used. The application for registration will also require the applicant to submit certain supplemental documents like maps of the geographical area described in the application to JIPO.
As regards the legal enforcement of GI protection, the Protection of Geographical Indications Law empowers any interested party to make an application to the Supreme Court to prevent false and misleading uses of GIs, which entail any use, designation or presentation of a good that suggests that the good originates from a particular place which is not its true place of origin thereby misleading the public as to the good’s true geographic origin. With respect to wines and spirits, the Protection of Geographical Indications Law allows interested parties to prevent the use of GIs for goods that do not originate in the place indicated by the GIs, notwithstanding that the true place of origin is indicated and might even be used in association with imitative terms such as ‘kind’, ‘style’ or ‘imitation’. However, consistent with Article 23(1) of the TRIPS Agreement, the enhanced protection granted under the Protection of Geographical Indications Law only applies to wines and spirits. Finally, the Geographical Indications Law recognises as an offence the use of GIs in a manner that misleads the public as to the geographical origin of the good. That offence invites a penalty of a fine not exceeding $1m Jamaican dollars or a term of imprisonment not exceeding 1 year, or both, on summary conviction before a parish court. On conviction before a circuit court, the penalty could be a fine or term of imprisonment not exceeding 5 years, or both.
On the institutional side, the Jamaica Intellectual Property Office (JIPO), the Bureau of Standards of Jamaica (BSJ), and the National Certification Body of Jamaica (NCBJ) work advance the goal of GI protection locally in different (yet at times complementary) ways.
JIPO, as a government agency with the important mandate of administering intellectual property systems locally, plays a critical role in advancing the goal of GI protection in Jamaica by facilitating the registration of GIs as well as by organizing and promoting through public education initiatives aimed at educating producers, groups of producers, and other key stakeholders within the local GI labyrinth on the subject matter of GI development, registration, administration, and protection. More recently, and in keeping with its mandate to provide training and education on IP matters, JIPO collaborated with the WIPO to host from June 13-15, 2017 a “National Workshop on Effective Management of Intellectual Property Assets for SMEs” scheduled for June 13 – 15, 2017 in Kingston. Among the topics it covered was that of GIs and their role in promoting and protecting “Brand Jamaica” [(Jamaica Business Development Corporation, ‘SMEs Set to Benefit from Intense Intellectual Property Training’ (June 20, 2017)]. JIPO also collaborates, where necessary, with key actors like the BSJ and producer groups towards the shared goal of effective GI protection locally. In this connection, JIPO notably worked with the BSJ on the development of the Jamaica Jerk Code of Practice, which outlines the formula and standard for production of Jamaica Jerk seasoning and sauces (Avia Collinder, ‘Jamaica Jerk producers first to apply for GI mark’, (June 4, 2014), Jamaica Gleaner).
The BSJ is ‘a customer-focused organization that promotes the international competitiveness of Jamaican producers, facilitates business development and trade, and supports consumer protection by providing standardization, metrology, testing, certification, and training services through visionary leadership, consultations, teamwork, and a committed, motivated workforce.’ In the context of GI protection locally, the BSJ provides independent evaluation services to ensure conformity with product specifications. For example, in the case of the “Jamaica Jerk” GI, the BSJ works to implement and enforce various “controls” to ensure that the requisite level of quality is prioritized and protected.
Finally, the NCBJ, which was “established in 2007 [and] offers certification services to companies in Jamaica and the wider Caribbean”, advances (albeit indirectly) the goal of protecting GIs locally through its “national programme”, which is said to “mirror [the] Geographic indicator”. Essentially, what this means is that if a company has a quality management system in place and can also prove that the product they have is made from a high percentage of Jamaican raw materials or Jamaican labour input, they will receive a Jamaican-made mark certification. That certification mark indicates that the product in question has been independently verified as having met specific quality requirements as well as that the raw materials are Jamaican-made. In this way, the NCBJ helps to preserve the reputation and brand image of products originating from Jamaica thereby advancing the goal of GI protection in Jamaica.
Part 2 of this piece will examine how GIs can be leveraged to promote sustainable development in Jamaica.
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