Why Nigeria needs a Geographical Indication Act

1.0 Introduction

According to the World Intellectual Property Organization (2023), there are over 58600 registered geographical indication products across 86 national and regional authorities in the world. Geographical Indication (GI) plays a significant part in global economic growth, cultural preservation, and intellectual property development. Geographical indication refers to any indications or ‘labels’ which identifies a good as originating in a particular territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin. For instance, the popular champagne is a popular GI good named after the Champagne region of France. Another popular GI good is Scotch Whiskey, named after Scotland.

Geographical indication products can be easily identifiable by the product quality and durability. These include non-agricultural products such as handmade craftsmanship. With the increasing need to leverage the economic benefits of GI protection, most jurisdictions across the world have sought means to establish a strong legal framework for their indigenous products through international treaties and domestic legislation.

1. The Paris Convention for the Protection of Industrial Property (1883, amended 1979)

The Paris Convention is the first international treaty to protect geographical indication (GI) products, recognizing them as industrial property. It mandates measures against false indications of source, including the seizure of mislabelled imports and gives a right of action to producers, manufacturers, and merchants commercializing the authentic GI product affected by misappropriation. Signatory states must ensure legal remedies against such false indications, such as allowing associations representing GI products to take legal action.

2. The Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods (1891)

This agreement aims to prevent the misuse of GIs and protect consumers from deceptive trade practices. It prohibits the import, sale, or display of goods with misleading labels and ensures legal recourse for affected parties. Participating nations must enforce measures against false indications, but Nigeria is not a signatory and thus not bound by its provisions.

3. The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement

The TRIPS Agreement sets minimum standards for GI protection, prohibiting misleading use even if the GI is literally true, such as “Champagne-Made in Nigeria.” Although Champagne as a GI is literally true, it does not represent the actual production location of the wine, which is in Nigeria. It restricts deceptive terms like “kind” or “imitation” and ensures that similar GIs can be distinguished. Pre-existing trademarks that have been used in good faith before the agreement can continue to be recognized.

4. The Geneva Act of the Lisbon Agreement (2015)

The Geneva Act modernizes the Lisbon Agreement by expanding protection to both appellations of origin and GIs. It introduces an international registration system under WIPO and requires member states to prevent the misuse of GIs. The act also ensures that registered GIs, such as “Basmati rice,” cannot be treated as generic terms, preserving their authenticity and commercial value.

1.1 Legal and Economic Implication for a Nigerian Geographical Indication Act

In 2017, the European Union estimated the sales value of GI products to be approximately 74.8 billion euros, representing about 15.5 percent of the total agricultural food exports in the EU. The economic importance of geographical indication as a tool for commercial and export promotion is evident. GI provides leverage for local producers to compete globally based on the uniqueness of their indigenous products extending the benefit of GI to cultural preservation. Through the wealth creation ability of GI, indigenous products can receive global recognition, enjoy cultural preservation and experience foreign investment for economic growth. However, without a legal framework serving as a foundation for the protection of geographical indication, the sector and interested parties are left vulnerable and exposed to likely misappropriation, economic exploitation and the loss of cultural value associated with their unique products.

Africa experienced its first GI product protected under a Sui generis system in 2010. Ever since, approximately 200 documented products have been protected by GI in Africa, being commercialized within the region and the international market. However, none of these GI products originated from Nigeria. As a multi-diverse State rich in cultural, handicraft and agricultural products, with expertise that has evolved over centuries, Nigeria is home to various potential GI products, including Ofada rice, Adiré, Ijebu garri, Nsukka yellow pepper, Aso Oke, Kano leather, Yaji (Suya Spice) and the likes.

Therefore, Nigeria currently does not benefit from the economic and commercial value obtainable from geographical indication products, which is equivalent to leaving money on the table. It is noteworthy that Nigeria has not domesticated any of the international treaties with legal protection for geographical indication, nor does it have a sui generis legislation. The only legislative provision in Nigeria that suggests legal protection of geographical indications, and can be relied upon to provide minimal recognition for GIs, is Section 43 of the Trade Marks Act, which protects certification marks and prohibits the use of fraudulent or false on goods contained in the Merchandise Marks Act. This this singular provision does not reflect the necessary legal protection with considerations to the peculiar socio-cultural and economic state of Nigeria as would be contained in a Geographical Indication Act. This legislative gap leaves much to be desired in terms of effective administration of GI and achieving international standards. Recognizing the economic value of GI, a Technical Working Group on GI was established. The Technical Working Group is tasked with pursuing the drafting process of a comprehensive legislation for GI protection in Nigeria as well conducting additional research on crucial matters and offering feedback to refine the draft legislation.

1.2 Key Considerations for a Nigerian Geographical Indication Act

Currently, 37 countries in Africa have promoted their economic interests by successfully implementing a sui generis framework for the protection of GI. As African countries adopt strategies to protect their cultural and economic interests, Nigeria is at the right moment to join the movement. The mere existence of a GI Act would be inefficient if it does not take the following into consideration.

(a) Public participation: Considering the vast ethno-cultural sources and diverse nature of potential GI products in Nigeria, it is important that the legislation reflects the socio-economic and cultural context of the GI sources and the historical significance tied to the products by ensuring that interested parties are involved in the drafting process.

(b) Scope of application: Depending on the subject jurisdiction, the right to a geographical indication can be applied for by individuals or collective associations representing interested parties. Therefore, the Act should reflect the scope of application regarding parties accordingly.

(c) Register: The establishment of a registry system is one of the most important provisions of the GI Act. The Act should provide for the creation of a register to contain the name of the product, its designation, proof of the product’s source or origin, details of the geographical source area, the production process is the product, the relationship between the product, its geographical source and method of production.

(d) Registration system and enforcement agency: The GI Act should provide uniform standards and quality control of products for GI application, eligibility criteria, documentation and verification procedures, provision for exportation, and measures to guard against misuse of products registered under the Act. It should also provide for an enforcement agency to monitor its implementation and undertake registration and administrative processes.

(e) International Standards: The provisions of the Act should be aligned with key provisions of international treaties relating to GI, ensuring that GI products registered under the Act receive global recognition and protection. Aligning the Act to international standards would not only increase foreign investors’ confidence in the industry but would further facilitate international trade and exportation in the global market.

1.3 Registration Process for a Geographical Indication Product

Upon a product registration as a geographical indication, it receives complete legal protection from misuse and misappropriation. Under the Geneva Act of the Lisbon Agreement (2015),for a GI product to be covered by the act, such geographical indication products must have been protected and recognized by national or domestic law before they can receive international protection under the Act. The international application must contain the name and designation of the GI product, the product category, the geographical source or area of production, a description of the link between the quality and reputation of the product and its origin, and national registration details. The successful status of the GI application validates its protection and recognition in the international community. On the basis of this requirement, a Nigerian product cannot be protected under the act. Although geographical indications do not require renewals and are valid indefinitely under the Geneva Act as provided in Article 8, paragraph 1, its registration becomes invalid if the product loses protection in its originating State.

1.4 Conclusion

Although Nigeria is a signatory to the Paris Convention and the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, the absence of a legislative and legal framework for geographical indication in Nigeria leaves a gap that exposes local producers and products to misuse, imitation and misappropriation while inadvertently hindering economic growth. The importance of a Geographical Indication Act cuts across the need for cultural preservation, intellectual property rights protection and economic development and can not be overlooked. As developed and developing countries reap the benefits of GI protection through exports, premium pricing, global market differentiation and recognition, Nigeria can tap into its deep well of indigenous agricultural products, crafts and cultural heritage to strategically secure its position in the global market.