With all the recent talk about Brand Jamaica, it seems to be a great pity that the legal protection of Jamaica’s national symbols and emblems is so weak.

Within the last decade, the agenda of many government entities and corporations have had at their forefront considerations of Brand Jamaica. The world associates certain people (such as Usain Bolt), food (such as ackee and saltfish) and music (reggae, of course!) with Jamaica and also the flag, statues/monuments and even our national emblems/symbols with the image of our country.

Just like any product which forms a part of Brand Jamaica, Jamaica’s national emblems and symbols are a part of its greatest intellectual property. But, as a country have we really considered what it takes to maintain and protect this brand?

On multiple occasions, the Government (through various media) has reiterated to the citizens of Jamaica that they should adhere to guidelines and rules governing the appropriate use of the country’s seven national symbols and emblems, but “What are these guidelines?” you might ask.

THE GUIDELINES

According to the Office of the Prime Minister (OPM), it is the accepted practice that each and every planned use of national emblems and/or symbols must be submitted in the intended format to the OPM for its consideration for approval. A graphic design reflecting exactly how the emblem/symbol is to be used should also be submitted. The OPM will either approve the use, subject to any prevailing terms/conditions, or object to the use as depicted.

Apparently, there are established guidelines for the use of the national flag which should be observed by any organisation or individual seeking to use the image or representation of the national flag for promotional, commercial or advertising purposes. These guidelines state that the national flag:

1. should be represented in the approved colours (black, green and gold);

2. should display a diagonal cross or ‘saltire’ – ie a cross of equal diagonal arms running from corner to corner of the flag, with four triangles in juxtaposition. The diagonal cross should be in gold, the top and bottom triangles in green and the hoist and fly triangles in black;

3. should always be used, represented or shown in a dignified manner;

4. is said to be defaced when an object/person is superimposed upon;

5. should not by any way of printing or illustration be masked by other objects;

6. should never have placed on it, any mark, insignia, letter, word, number, figure or drawing of any kind; and

7. should be displayed in a manner which is described as “aloft and free” whereby all symbolic parts of the Flag can be seen.

So many guidelines, but how many actually follow it or are actually aware of it? These guidelines are usually known and observed by a very small group, such as entities which use the flag on their products/labels to state “Made in Jamaica” or “Product of Jamaica”.

Similar to those for the national flag, there are established guidelines for the state arms/coat of arms. These guidelines state that this emblem is restricted only for official usage.

The OPM has further stated that a draft policy is being developed which will support this statement and which may include certification or licensing of documents issued by and on behalf of the Government of Jamaica (GOJ), authorisation for use as part of an official logo (as for government ministries, agencies and departments), trade mark, or geographical indication in keeping with GOJ adoption of intellectual property rights, or in specific circumstances, such use as approved for special commemorative programmes or events.

The policy will not contemplate approval for commercial use of the state arms/coat of arms by the general public whether bodies corporate, or individuals.

These, however, are mere guidelines weakened more by the fact that there are no penalties for failing to follow their guidance (other than a meagre reprimand, slap on the wrist or public announcement, of course).

SO, WHAT ABOUT THE TRADE MARKS ACT?

The Trade Marks Act prohibits the registration of any representation which consists of or contains a representation of the coat of arms, national flag and any other national symbol.

It is important, however, to realise that this restriction is only in relation to the registration of the mark and does not prohibit the use of the symbols themselves.

WELL, HOW DO WE PROTECT BRAND JAMAICA?

In 2014, it was reported that a joint committee consisting of representatives from a number of ministries and agencies of the Government, was created to work on a proposal for the formulation of guidelines relating to the management and regulations of the national emblems and symbols.

In 2016, the Office of the Prime Minister reported that they were finalising a Cabinet submission, which will allow for the publication of an official handbook of the emblems and symbols and their use. To date, no such handbook has been published, much less made available on the OPM’s website for public viewing.

It is worthwhile then that the Government should, at this juncture (given recent events), consider passing legislation (similar to that of the United Kingdom, India and other countries) which sufficiently protects our national emblems and penalises persons who seek to use them without proper authority.

As an example, under the State Emblem of India (Prohibition of Improper Use) Act, the commercial usage of their national emblems without permission from the Government, is punishable with imprisonment and a fine.

Likewise, Singapore has legislation which controls the display of their national emblems and makes it an offence for any person (both individuals and body corporates) who contradict the sections of the legislation to be liable for a fine or imprisonment.

Barbados also has regulations which make it an offence for the improper use of their national emblems.

Interestingly, the English Trade Marks Act, unlike Jamaica’s Trade Marks Act, makes it a punishable offence for a person, without the authority of Her Majesty, to use in connection with any business the royal arms (or arms so closely resembling) in a manner that makes it appear that he is authorised to use same.

As it stands now, in Jamaica, any prohibition by virtue of these guidelines, although justifiable, is by mere convention and not law.

Brand Jamaica is one of great value, a brand that the world acknowledges and uses for commercial gain, ranging from partnerships with strong Jamaican names and requesting appearances from Jamaican personalities to using Jamaican symbols and emblems in their marketing. While these guidelines purport to protect some of our national jewels, they are exactly that, guide lines; not a piece of legislation, not a regulation, and not an order — guidelines that bring no real strength and offer no real protection to the reputation of our country and our national symbols.

While we try to build Brand Jamaica, maybe we should also be concerned about protecting pieces of the brand that already exist. Lest we forget that Brand Jamaica is not about our country being paid for the use of its symbols by others but protecting the reputation that comes with it; because as it currently stands, some aspects of the brand are dangling from the wrong string….or line.

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