Can Brand Jamaica be protected?
"Brand Jamaica" is one of the biggest success stories coming out of the London Games. And it's our brand. Brand Jamaica is an asset and the value seems to be appreciating on a daily basis. By my rough calculation, this asset is constituted by Usain Bolt; Reggae and Dancehall music; the black, green and gold colours of the national flag; Yohan Blake; Jamaican male sprinters on a whole; Jamaican female sprinters; and things Jamaican on a whole -- probably in that order.
How do we protect Brand Jamaica? Can Brand Jamaica be protected? Who is responsible for protecting Brand Jamaica?
In my estimation, Brand Jamaica is constituted by both intangible and tangible elements. Some of it is property and some is not. There is the tangible property made up of the land of wood and water. There is also the intangible property which is creative expressions captured as intellectual property. There is also an aspect of Brand Jamaica that is not property, it is simply culture, a vibe, a "Jamaicaness" that you just know when you see or experience it.
In this article, we'll take a general look at some of the issues associated with protecting aspects of the intangible property called intellectual property. The intellectual property aspects of Brand Jamaica may be protected by registering trade marks, protecting image rights from misappropriation, registering geographical indications, protecting copyright works from infringement, registering patents and industrial designs, and protecting trade secrets. Each type of intellectual property mentioned is suitable for satisfying different needs of brand owners and strategies may vary depending on the nature of the particular business involved.
Government and public institutions may establish a framework which encourages a culture in which entrepreneurs and other individuals are aware of their intellectual property rights, as well as, provide some resources to facilitate responses to infringement in cases where "national or public interest" seems to be at stake. However, in order to successfully protect Brand Jamaica, the responsibility is that of Jamaican entrepreneurs who use the brand, whether as a recreational or economic expression. Users of the brand, be it musicians or athletes need to claim ownership of the brand, be pro-active, register brand indicia, monitor market places, file law suits, send warning letters, negotiate royalty fees, and so on. In some cases, formation of lobby or common interest groups may be what is needed to accomplish certain goals or changes.
The truth is that Brand Jamaica may be exploited by Jamaicans and non-Jamaicans alike. There is no inalienable right of Jamaicans to own and exploit many aspects of Brand Jamaica. For foreign entrepreneurs wishing to exploit Brand Jamaica, their primary focus is that their consumers think about Jamaica and things Jamaican when making their purchasing decision. It may not be as important that they have Usain Bolt or Yohan Blake in their advertisement. It may just suffice that they have a tall black athletic man photographed or simply a silhouette in full sprint motion. It may just suffice that they have a fusion of Jamaican style Reggae music or that they have a red, black green and gold colour scheme or that they have Jamaican style spicy food.
There are legal ways to imitate a brand without causing infringement. At the same time, it is better that our competitors are required to resort to imitation rather than being able to capitalise on the authentic brand indicia without paying for its value. Even worse, is a situation in which a registered brand indicia is owned by a person or business with no Jamaican connections, simply because they submitted their application for registration first.
By now, it should be apparent that the only way Jamaica and Jamaicans can be the true beneficiaries of Brand Jamaica is if our people invest and exploit things Jamaican. Is it okay for us to go on a mission to invite foreign investment? Is there enough capital and interest among Jamaicans for us to truly be the owners and caretakers of this brand? Have we properly recognised the value (both the developed and undeveloped value) of Brand Jamaica and are we bringing the unique leverages to the bargaining table for foreign direct investment? Is quality control important to us and are we ensuring that authentic Jamaican products are differentiated on the international market?
Finally, my message to all Jamaicans is that the world is not likely to recognise an inalienable right of Jamaicans to Brand Jamaica. In many instances, aspects of Brand Jamaica may be registered or exploited by non-Jamaicans simply on the basis that the non-Jamaican is the first to apply for registration or the first to put the brand on a particular market. Consumers are generally not waiting for the authentic Jamaican product or service. They will spend their money simply because they are reminded of Jamaica. The onus is on the entrepreneurs of Jamaica, the owners of the various elements of Brand Jamaica, to recognise that they each own a piece of the brand and it is their responsibility to guard that piece, including by taking appropriate legal action.
Andrea Scarlett-Lozer is an Associate at Myers, Fletcher & Gordon and is a member of the firm's Commercial and Intellectual Property Department. Andrea may be contacted via firstname.lastname@example.org or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.