Geographical Indication as an Intellectual Property Right: A comprehensive overview

Introduction

Intellectual property plays a foundational role in the creative economy of any given State. A common selling point of intellectual property right is its goal to provide adequate legal protection to creative and innovative works. Intellectual property rights such as copyrights, patents and trademarks are popularly known and commonly recognized. However, these rights are individualistic in nature. Intellectual property rights are not limited to individual ownership rights that protect the rights of a creator. It also includes certain rights that would be considered collective rights due to the nature of their ownership or assignment to a select group of persons.

The scope of creativity and innovation is expansive and, in certain circumstances, might not be adequately protected by commonly known individualistic intellectual property rights. Therefore, these subjects are appropriately protected by collective intellectual property rights. Unlike individually owned intellectual property rights, collective intellectual property rights are collectively owned and are typically passed down through generations. There is a firmer relationship between IP rights and the indigenous community they originate from. Due to the peculiar nature of its ownership, collective IP rights play an important role in preserving the cultural and indigenous identity of communities. In doing so, it protects innovative practices developed by the community with the passage of time. A significant type of these IP rights is Geographical Indication (GI).

The Concept of Geographical Indication

A geographical indication is a distinctive sign, mark or name that distinguishes products, goods and services based on their defining features. These defining features are often attributed to the geographical source from which the goods, products and items originate. The sign or name identifies products which possess a specific representative quality that reflects their geographic source. Usually, the subjects of a geographical indication collectively possess similar distinguishing attributes. Geographical indication establishes a link between the quality and reputation of goods and their production source. Consequently, GIs are important to ensure the integrity and value of goods.

Geographical indication as an intellectual property right confers ownership on the producers of the products within the specified geographical location and ideally benefits the community from which it originates and its relevant stakeholders. It expands the scope of intellectual property to include agricultural products, consumables and handcrafted items. Therefore, it protects GI products from piracy, misappropriation and geographical indication usurpation. GI usurpation occurs when an individual, organization or country misattributes the authentic origin of a product.

In addition to the legal protection it provides, GI increases the market value of its products. GI products are often in high demand due to their quality assurance and authenticity, resulting in high prices which align with basic economic principles of demand and supply. Similarly, foreign demand for GI products is accentuated by the reputation acquired by such products. By effect, the stronger the reputation, the higher the commercial value. Therefore, the exportation of GI products is a gold mine for countries that sufficiently leverage them. It could also attract foreign investment in industries associated with producing such goods. The brand equity of these products provides them with a competitive edge over the local and international markets while preserving the cultural identity of their source.

Registrable and Non-Registrable Geographical Indication

The registration of Geographical Indications can occur through two significant means. A product can be registered with a collective mark. A collective mark is developed and reserved exclusively for members of a collective body such as an association, society, or cooperative of the production and supply chain of the GI product. Therefore, ownership of this GI is contingent on membership with the association. Upon registration with the appropriate regulatory body, the mark becomes effective and can be administered on products that satisfy the quality standards of the association. Conversely, a certification mark is developed and administered by an authorised body, which is often a regulatory authority. It is also referred to as a guarantee mark, as it assures a product’s quality, standard and performance. Any producer that satisfies the set-out quality standards can utilize the mark accordingly, subject to the provisions of law within that jurisdiction.

Notwithstanding the foregoing, there are marks, signs and names that can not be registered as a Geographical indication. These marks can be regarded as Non-Registrable GIs. A mark that is operational as a trademark can not be registered as a Geographical indication. If a GI is already registered and in use, such a mark can not be registered by another other than the holder. When a business is registered under its owner’s name, such a business name can not be registered as a GI. Also, a GI not protected in its country of origin can not assume legal protection in other jurisdictions.

Commonly Known Geographical Indication Products

According to data collected by the World Intellectual Property Organization in 2023 across 86 national and regional authorities, there are approximately 58,600 protected GIs. There are popularly known geographical indications whose reputation has amassed international recognition for its quality standards and commercial value. Oftentimes, geographical indication products are named after the geographical location from which they originate. These GIs include agricultural products such as the Penja pepper from the South-West region of Cameroon and Kalamata olives from the city of Kalamata in Greece, drinks such as Champagne from the Champagne region in France, Darjeeling Tea from the Darjeeling district in India and Jerez Sherry from the Jerez in Spain and other items such as Swiss wristwatches from Switzerland.

Although there is no statutory provision and protection for Geographical indications in Nigeria, there are potential GI products, including Ijebu Gaari from Ijebu in Ogun State, Ofada Rice from the Ofada region of Ogun State, Calabar Pepper from Cross-River State, Adire from Abeokuta, and Aso-oke. When legally protected, these products can be leveraged for economic growth through exportations and foreign investment.

The Fine Line Between Geographical Indication and Trademark

Geographical indications and trademarks are two intellectual property rights cut from the same cloth. They are both distinctive signs, marks and names that distinguish a product from that of others. Also, they associate a specific quality standard and commercial value with goods and products bearing the mark. Notwithstanding their close similarities, they are separated by their purpose, defining attributes and scope. Geographical indications provide a link between a product and its geographical source, often bearing the name of the geographical region from which it originates, while a trademark associates a product with its producer. A GI is a collective intellectual property right owned by a group of producers or holders usually linked to a specific region while a trademark is individually owned. The requirement of a trademark is its distinctiveness, while a GI must satisfy a quality standard and other requirements.

Therefore, trademarks and GIs serve different purposes.

The Difference Between Geographical Indication and Appellation of Origin

Geographical indication and Appellation of Origin are often used interchangeably due to their close relationship. However, they possess subtle differences. While all appellations of origin are geographical indications, all geographical indications are not appellations of origin. By implication, an appellation of origin is a form of Geographical indication. Article 2 of the Lisbon Agreement defines appellations of origin as the geographical denomination of a country, region, or locality, which serves to designate a product originating therein, the quality or characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors.” Therefore, a product which is an appellation of origin consists of the name of the exact geographic region from which it originates.

An example of a Geographical indication would be Swiss Wristwatches. Although this GI links the product with its geographical source, it does not indicate an exact region, unlike Champagne, which originates from the Champagne region of France. The key difference between the nature of these products is that while “Swiss Wristwatches” as a GI merely indicates the geographical source, an appellation of origin indicates that the product has a certain quality solely because it originates from the specific source. Therefore, an appellation of origin links the quality of the product to the region. This is because an appellation of origin is not solely dependent on the geographical location but also on the unique production method, raw material skill, and knowledge that collectively contribute to the overall quality of the product. For a product to be considered an appellation of origin, the raw material and chain of production, processing and development must be conducted within the specified region. These factors provide the striking difference between GIs and appellations of origin.

Conclusion

The legal protection of Geographical Indication is highly important for economic growth and cultural preservation. As one of the oldest intellectual properties, it is intricately linked to indigenous agricultural products and creative works. Geographical indication increasingly receives international attention and can be leveraged by creative economies accordingly. Skills and knowledge of production methods are undeniably important to geographical indications, especially appellations of origin. As more GIs receive recognition and are registered, extending this IP right to services would create new economic opportunities and open the doors to new possibilities in the creative sector.