In 2004 the Protection of Geographical Indications Act (“the Act”) was passed in Jamaica. The Act defines a geographical indication as:

“an indication which identifies a good as originating in the territory of a country, or a 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 other words, a geographical indication is a name or sign used on a product to designate where it is from; and is mainly used to certify a product’s authenticity, high quality and market credibility. Well known examples of geographical indications include Idaho potatoes (Idaho, USA), Champagne (France), Florida oranges (Florida, USA), New Zealand lamb (New Zealand) and Asiago cheese (Italy).

The Act seeks to prevent the improper use of geographical indications. It allows for an application to be made by “an interested party” to the Supreme Court in the following circumstances, where:

1) a good is presented in a manner that misleads the public that it originates in a geographical area other than its true place of origin. For example, Swiss Jerk Seasoning (this infers Swiss origins even though jerk seasoning is considered to originate in Jamaica);

2) a geographical indication is used in a way that constitutes unfair competition within the meaning of the Fair Competition Act; or

3) wines or spirits which are not from the region indicated by the geographical indication are falsely identified as wines or spirits of that region. In such instances the application may be made even if the true origin is in fact indicated or even if the geographical indication is accompanied by words such as “comparable to” or “imitation”.

If successful, the Court may grant the applicant an injunction to restrain use, award monetary compensation or award any other remedy that it deems appropriate in the circumstance.

False use of a geographical indication may have the effect of misleading a consumer into purchasing a particular product in the belief that it possesses specific qualities and characteristics that are normally associated with its place of origin. The Act thus facilitates consumer protection as it allows the consumer to rely on the label as a guarantee of its origin and authenticity. The Act also serves to protect producers of authentic products, who may be adversely affected by the negative experiences of consumers who have purchased products of inferior quality under a false geographical indication.

Under the Act, an application for registration of a geographical indication may be made by any producer or group of producers carrying on activity in a specified geographical region in respect of a specified good or by any competent authority. Application is made to the Registrar of Industrial Property, who operates out of the Jamaica Intellectual Property Office.

In Jamaica, there are several potential geographical indications for which protection may be sought. For example “Blue Mountain” for coffee; “Jamaica Jerk” for jerk seasoning; “Jamaica ginger” for ginger; “Scotch Bonnet Pepper” for pepper or “Lucea” for “yam”. It may even be possible to recognize and protect Jamaican handicraft goods.

Unfortunately, since the inception of the Act none of these products has been registered for protection. “Blue Mountain” enjoys local and international protection as a trade mark but, is this enough? An important distinction between trade marks and geographical indications is that trademarks function to distinguish a specific product/ manufacturer whereas a geographical indication points consumers to the geographical area from which a product originates. This inures to the benefit of all producers of the product in that area and is oftentimes instrumental in regional development.

Geographical indications, much like trade brands, are valuable assets. Currently, there are more than 10,000 protected geographical indications worldwide with an estimated trade value of over US$50 billion. In recognition of this value, it is necessary to take advantage of the provisions of the Act and to protect Jamaican geographical indications. This will enable Jamaican producers to obtain international market recognition at a premium price for superior quality products.

Kerry-Ann Heavens is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Commercial and Intellectual Property Department. Kerry-Ann may be contacted via kerry-ann.heavens@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.