Geographical Indications Law
Brief Background To The Geographical Indications Law
The Protection of Geographical Indications Act No. 5 of 2004 provides special protection to geographical indications in Jamaica. The Act comports with requirements of Articles 22 and 23 of the TRIPS Agreement giving geographical indications for wines and spirits greater protection than that which applies to geographical indications for other goods, leaving important local GIs with only minimal protection.
Under the Geographical Indications Act of 2004, whereas geographical indications for all products are protected against false and misleading uses, geographical indications for wines and spirits are also protected against uses on a wine or a spirit not originating in the place denoted by the geographical indication even where the use is not misleading. The legislation is not yet operational. A number of procedural matters have to be prescribed by regulations which have not yet been promulgated.
Prior to the GI Act there was no separate statutory protection for geographical indications in Jamaica. Some protection is available for geographical indications and trade names through a combination of trade marks law, consumer protection laws, and the Fair Competition Act and at common law. In respect of common law protection against misleading uses of a trade name or a geographical indication has primarily been afforded through the tort of passing off.
A geographical indication (GI) is defined as:
“an indication which identifies a good as originating in the territory of a country, or a region or locality in that 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” (Section 2).
‘Good’ means “any natural or agricultural product or any product of industry or handicraft” (Section 2).
Under the Act any interested party may apply to the Court to prevent the use of GIs:
- on goods in a manner that misleads the public as to the true geographical origin of the goods
- which amounts to unfair competition
- identifying wines and spirits that do not actually originate in the place indicated by the GI even where the true place of origin is indicated and even where used in conjunction with “kind” “style” “imitation” “type” “comparable to” or other similar expressions.
Misleading use of a geographical indication which is deliberate constitutes a criminal offence punishable in a lower court (Resident Magistrate’s Court) by a fine not exceeding one million Jamaica dollars and/or by imprisonment of a term not exceeding 12 months.
If the matter is addressed in a higher court (Circuit Court) the fine is unlimited and the maximum term of imprisonment is 5 years. In addition either court may impose a pecuniary penalty where the court is satisfied that benefits were derived by or accruing to the offender from the commission of the offence.
The Act protects unregistered geographical indications but also provides for a registration system to serve as prime facie evidence that a particular GI properly falls under the Act.
Any producer or group of producers may apply to register a geographical indication once they are carrying on an activity in the specified geographical area in relation to the goods specified in the application.
- producers of agricultural products
- manufacturers of products of industry or handicraft
- persons who exploit natural products and
- persons dealing or trading in such products
The Act excludes certain types of indications from protection and allows for exceptions in relation to indications that were in continuous use prior to a specified date. Trademarks containing or consisting of misleading geographical indications may be disallowed registration and, where already registered, may be revoked.
The Act provides for the promulgation of Regulations for the proper implementation of the provisions thereof including the procedures for registration of geographical indications.
The Government Geographical Indications Office
The Geographical Indications Law is administered by the Trade Marks & Designs & Geographical Indications Directorate of JIPO.