GIS AS A TOOL FOR DEVELOPMENT: ITS SPECIAL NATURE AND CHARACTERISTICS

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1 Creating Value through Geographical Labeling and Indications: The Power of Origin GIS AS A TOOL FOR DEVELOPMENT: ITS SPECIAL NATURE AND CHARACTERISTICS P R O F E S S O R R U T H O K E D I J I N O V E M B E R 1 0,

2 GEOGRAPHICAL INDICATIONS WHAT ARE THEY?

3 GEOGRAPHICAL INDICATIONS Indicators of Quality, Reputation, Characteristics 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 origin - TRIPS GIs are a way for producers to indicate the geographic origin of their product; they convey to the consumer particular features of quality and reputation and are a unique way to protect niche products particularly in agricultural trade.

4 AGRICULTURAL TRADE

5 AGRICULTURAL EXPORTERS

6 AGRICULTURAL TRADE IN AFRICA 12.4 Million people in Horn of Africa require humanitarian assistance for food shortages Currently only 20% of Africa s GDP Main source of income for 90% of rural population Agri-business could make Africa a food exporter in addition to covering shortages Of the top 20 top agricultural and food commodity importers, 60% are from Africa. Sub-Saharan Africa has 12% of world s arable land, share of exports has shrunk from 10% to 2% in four decades.

7 POLICY TOOLS FOR IMPROVING AGRICULTURAL PRODUCTIVITY AND ENHANCING MARKET SHARE

8 DIFFERENT REGIMES Several legal regimes have the potential to be powerful tools for agricultural products. Geographical Indications, Trademarks, and Appellations of Origins are of particular relevance for agriculture trade. Geographical Indications: protect marks, symbols, etc. connected to geography of origin Trademarks: protect distinctive marks that indicate source Certification Marks: indicate a certified level of quality Collective Marks: indicate a product made by a collective of producers. Appellation of Origin: comes from the Lisbon Agreement protects indication of origin on products

9 GEOGRAPHICAL INDICATIONS: A CLOSER LOOK Niche products specific to a region Can be collective/certification marks Can be protected under sui generis legislation/administrative law Up front cost is higher: administering/enforcing required

10 GI REQUIREMENTS: INFRASTRUCTURE A regime for GIs requires administrative agencies and regulatory infrastructure to establish and enforce standards. GIs often result from sui generis legislation. This regime type has a much higher up front investment by countries and producer organizations. Registration, auditing, and enforcement systems all need to be set up ahead of time.

11 TRADEMARKS AND THE GI: OVERLAPS/TENSIONS TMs protect distinctive marks that indicate origin of a good the source of a good or service. They can also be collective marks reflecting a standard of quality. A branding mechanism to secure market share diffused through advertising. Belongs to a company, not a region Trademarks can consist of geographical terms, but must have secondary meaning (e.g., Montblanc)

12 CERTIFICATION MARKS Subset of Trademarks Indicate a quality or safety standard May be used by anybody who complies with the standards defined by the certifying authority

13 COLLECTIVE MARKS Owned by an organization Members use mark to identify with a level of quality or accuracy, geographical origin, or other characteristic Can be used by a variety of traders that belong to the association

14 APPELLATIONS OF ORIGIN Designates product origination Essential to geographical environment Lisbon Agreement, Art. 3: Protection shall be ensured against usurpation or imitation, even if the true origin of the product is indicated or if the appellation is used in translated form or accompanied by terms such as kind, type, make, imitation, or the like.

15 GEOGRAPHICAL INDICATIONS IN EUROPE EU: 25-30% of agricultural products covered by GIs Price Premiums Can register in EU Need to specify Producer Group; Protection in Country of Origin

16 EXAMPLES FROM AU

17 FUTURE POSSIBILITIES Rooibos Tea Niger Galmi Onions Ugandan Bark Cloth Ghana Kente Cloth

18 TRADEMARKS /GEOGRAPHICAL INDICATIONS Trademark Geographical Indications Holder Company/Private Region/Producer Organization Protects Distinctive marks Origin indicator Value Through marketing Inherent to region s uniqueness Pre-establishment costs Post-establishment costs Little marketing only High standard setting, admin, producer organization Maintenance and use High auditing/ enforcing Foreign Protection Almost everywhere Mainly EU Participation Restriction International Agreements Any distinctive mark TRIPS Only geographic significance TRIPS marks for wine/spirit only

19 TRADEMARKS OR GEOGRAPHICAL INDICATIONS? CASE STUDY: ETHIOPIA V. STARBUCKS Obtained Trademark Protection over Yirgacheffe, Harrar, Sidamo Coffee Brands to force Starbucks to License GI Protection was too expensive Remember: the problem with trademarks is that the consumer association must be with qualities independent of origin.

20 GEOGRAPHICAL INDICATIONS FOR THE AU?

21 BENEFITS OF GIS Economic Producers: quality product sold at premium price Consumers: quality product assurance, unique product Noneconomic Rural development stimulation Spillover: tourism Reputational Never Generic

22 A UNIVERSE OF IMPLEMENTATION OPTIONS GI Cert Collect Paris Convention TM

23 THE PARIS CONVENTION 1883 Paris Convention on Intellectual Property First international treaty on intellectual property protection Article 10 of the Paris Convention gives remedies for unlawful use of indications of source on goods. No source indication can be used if it refers to a geographical area from which the indicated products do no originate. Appellations of origin and geographical indications are not expressly mentioned, but gives protection to indications of source. The Paris Convention allows parties to make special agreements between themselves for the purpose of protecting industrial property. The Lisbon agreement is an example of such a special relationship. 1(2): The protection of industrial property has as its object patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellation of origin, and the repression of unfair competition

24 CERTIFICATION Product Labeling/Food safety standards Collective: reserved for members of a collective body Certification granted by a certification authority or a private association/granting body Agricultural label

25 TRADEMARK/UNFAIR COMPETITION Based on consumer confusion commercial practices mislead by false designation of geographical origin Need to have secondary meaning for geographical marks Prior use rights

26 LISBON AGREEMENT The geographic 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 essential to the geographic environment, including natural and human factors Not just protection from usurpation/imitation no misleading of consumers is required. AO protection based on a geographical environmental feature natural or human factor AO protection through a single registration process any party to Paris Convention Cannot become generic if still protected in country of origin

27 TRIPS 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 geographic origin. Three distinction in levels of TRIPS protection Geographical indications for all products (low) Wines and spirits (medium) Wines only (high)

28 SUI GENERIS LAWS Based on Public Law via administrative procedure Application for geographical indication/decree establishing origin Need to be clear on protection Needs opposition procedure

29 REGIONAL SYSTEMS EC (Pecorino Romano, Arroz del Delta del Ebro) Heightened protection for wines, spirits Heightened protection for GIs OAPI Bangui 1977 Agreement Bilateral Agreements Mainly concerning wine trades

30 CURRENT GI TRENDS GI use expanding Proposals in WTO to expand GI protection Note: US hesitant to recognize expansion

31 CHALLENGES OF GI REGIMES Conflict with Trademarks Foreign Market Access Compliance Distribution Cultural know-how

32 CONFLICT WITH TRADEMARKS Many countries (including the US) favor heavily trademarks over geographical indications. GIs also do not automatically guarantee access to foreign markets. Ensuring compliance with GI standards. GIs are a great way to showcase the cultural know-how of a geographical region. However, there is no accompanying trade secret law, cultural know-how is not protected in that way for GIs.

33 FOREIGN MARKET ACCESS Having a GI does not guarantee access or sales in a foreign market. Needs recognition and acceptance Compliance with foreign market standards

34 COMPLIANCE WITH STANDARDS One of the biggest downsides of implementing a GI regime is the enforcement aspect. GIs have an implication of quality and uniqueness that needs to be maintained. Any foreign standards of safety or quality needs to be met or exceeded by the certification. A set of domestic standards need to be identified and a means for certifying products to those standards needs to be implemented. In addition an auditing process needs to be rigorously maintained to ensure continuing quality. SPS/TBT Considerations

35 DISTRIBUTION OF BENEFITS Getting the GI protection for a mark, setting up and maintaining quality may create a price premium. However, getting the price premium is not the end of the story. Countries using geographic origin marks need to ensure that the profits are distributed back to the producers. This may require further infrastructure investment up front.

36 CULTURAL KNOW-HOW It is important to remember that GIs do not have any inherent trade secret protection. GIs protect products coming from a geographical area from copying or confusion. GIs also showcase local know-how and culture. However, the protection only extends to the products, not the methods to create them.

37 WHAT IS REQUIRED FOR GI PROTECTION IMPLEMENTATION?

38 STEPS FOR GI PROTECTION 1) Identify Potential Products Market Assessment Product link with Geography 2) Set Standards 3) Framework 4) Producer Organizations 5) Marketing/Packaging

39 IDENTIFY PRODUCTS What products are marketable for trade? What products are tied to a geographic area?

40 STANDARDS What quality standards are required by foreign countries? What quality standards are feasible? In setting standards it is important to take into account standards of safety and health in foreign countries. It is also to keep in mind that the standards of quality set must be feasible for producers to meet.

41 FRAMEWORK Institutional Marketing Distribution Production Legal National or regional law Agency creation Registration process

42 PRODUCER ORGANIZATION Who qualifies as a producer? What standards will the organization set? How many producers will qualify? Who will run the organization?

43 MARKETING STRATEGIES Marketing in Different Countries? Direct sell? Licensing? How to package? Mark needs to be prominent

44 SHOULD THE AU INVEST IN GIS?

45 ARIPO POSITION ON GIS May 2010: Regional Workshop on the Protection of Geographic Indications in the African Member States of the ACP Recommendations for ARIPO: Sensitize, assist Member States in setting up National Legal System on GIs Harmonize laws of Member States on GIs Ensure legal system of Member States are adjusted to international conventions on GIs Regularly disseminate information/strategies on GIs to African Member States

46 OAPI Through the Bangui Act of 1999, the OAPI officially recognizes: Patents Utility Models Trademarks and Service Marks Industrial Designs Trade Names Geographical Indications Layout Designs of Integrated Circuits New Plant Varieties Literary and Artistic Works

47 BANJUL PROTOCOL ON MARKS African Intellectual Property Organization (OAPI) Banjul Protocol on Marks established a Trademark filing system. Now compatible with TRIPS

48 PARTICIPATION IN INTERNATIONAL TREATIES Treaty OAPI ARIPO LISBON Banjul Protocol TRIPS AU Members Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Côte d'ivoire, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Mali, Mauritania, Niger, Senegal, Togo Botswana, Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Namibia, Rwanda, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia, Zimbabwe Algeria, Burkina Faso, Congo, Gabon, Togo, Tunisia Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe 41 members, 11 nonmember/observer states

49 COORDINATING AU POLICIES GI s or any other regime of protection cannot exist in isolation To make the most of its investment in a GI regime (or other form of protection), the AU must coordinate policies that have the most direct impact on the quantity, quality and sustainability of agricultural trade These include the AU s innovation, agriculture, IP, ToT, and science and technology policies.

50 AU POSITION ON AGRICULTURE Market Access Increase access for African agricultural products Tariff reduction Enhance supply capacities Self-selection of products Domestic Support Reducing trade-distorting support by developed countries LDCs exempt from reduction commitments Export Competition Reduction of export subsidiaries Differential treatment in favor of LDCs

51 ALIGNING INNOVATION AND AGRICULTURAL POLICIES At present, farmers needs and those of agri-business too often do not sufficiently drive the orientation of agricultural research and extension services, causing lack of relevance and impact. Even when relevant, know-how and technologies are too often not widely taken up by farmers, suggesting also the lack of effectiveness in the transfer of technologies. In spite of its socio-economic impact, the agricultural research does not come high on the list of priorities in the Poverty Reduction Strategy Papers of African countries (FAAP, 2006).

52 THE FUTURE? No matter what policy path (s) the AU chooses, enhancing agricultural exports and securing greater markets requires an effective policy eco-system that nurtures innovation, promotes R&D in agricultural products, encourages the development of defensible standards and facilitates the development of producer organizations.

53 THANK YOU

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