Dear Editor,
I should start by saying that the arena of trademarks and Geographic Indications (GIs) is fraught with confusion, legal hurdles and national rivalry. The consequences can be both costly and give rise to unjust outcomes for international minnows such as Guyana. What is more, recent trade agreements threaten to be the proverbial fly in the ointment as regards these systems in the not too distant future.
I have noted two main reactions to Monday’s (Aug 16th in SN and KN) piece concerning the EU’s granting of GI status to Demerara Rum.
First among the reactions, has been an erroneous belief that GI status had already been granted to Guyana rum. This recently repeated claim was first noted by me in a 2017 piece by Dr Ravi Dev. In fact, in 2017 the application was still in train. That effort on which Dr Dev correctly reported that I was involved, has only now fructified. The GI status was bestowed on our rum by the relevant EU authority as of August 4, 2021.
Secondly, I have also received several messages, all well-intended, polite and friendly, to the effect that Demerara Sugar also attained the status as a GI some time ago. I understand the strength of feeling behind the thrust by Guyanese to see the cachet, ‘Demerara’, associated with Demerara’s most famous product/s. The truth is however, that the cachet Demerara has been so commercially valuable in the past that as long ago as the 1830s British retailers successfully sought in Court to lay claim to have the right to apply that title to any brown sugar they sold. More recently, in the case involving Bedessee Imports Limited and the use of the Demerara sugar label in Canada the dispute has been resolved in Bedessee’s favour on grounds that the term Demerara had, for purposes of the law in those places at least, become a generic term for brown sugar. GuySuCo has developed and subsequently branded ‘Demerara Gold’, rather than Demerara Sugar, and registered it as a Community Trade Mark Indicator. That took effect on 14th Aug 2008. Other firms cannot use that term to describe their brown sugar. In other words, a sub-set of Demerara sugar has been registered, not as a GI, but as a trademark.
Ms Nisa Surujballi, then Marketing Manager of GuySuCo and subsequently Caricom Staff member, was the chief locally-based collaborator who worked assiduously on this challenge. The option of the GI was not available to us in the circumstances. From my position as Deputy Secretary General at the ACP Secretariat and later as Senior Director of the Caribbean Regional Negotiating Machinery (CRNM) both these exercises involved effort from myself and my colleagues in Brussels and Barbados alongside with the other persons I mentioned in Monday’s piece. The community trademark was also a very worthy achievement of which Guyana can be proud.
Doubtless this clarification will bring the inevitable question as to the difference between the two nomenclatures, GIs and Trademarks. Basically, they are different systems of registration which provide protection of products as intellectual and /or industrial property. GIs and trademarks are employed and sponsored by the EU and USA, respectively.
Simply put, geographical indications (GIs) identify a good/s as originating from a particular place. In contrast, a trademark identifies a good/s or service as originating from a particular company. The former can be enjoyed by several producers sharing inputs with special characteristics from the specified location. It may be regarded as communal rather than private. Whilst the two systems share similarities (in relation to territoriality, duration of protection and the level of inventiveness required for their protection) they are not the same. There are differences with respect to authorized use of these rights, their function and the protection they enjoy.
GIs benefit from several privileges, namely: protection against genericness; coexistence with previous trademarks; no need for renewal of registration; ex officio protection; absolute ground for refusal of the registration of a sign as a trademark as is now the case with the EUTM; and protection in another country through bilateral agreements (the list system), without a procedure of registration as required by other intellectual property rights (IPRs). There is a great deal more to the difference and there are handicaps resulting from the co-existence of the two systems.
The two types of property rights have given rise to long-standing and bitter tensions between the EU and the USA in the WTO & TRIPS context, for example.
What is more, such tensions are scheduled to get worse. The recent USA-China Economic and Trade Agreement, (The Phase One China Deal) signed in Wash-ington, 15 January 2020 threatens to undermine the viability of the GIs system. First, because it involves the world’s two largest economies agreeing to disregard existing GIs in cases where the US demands market access to China for US goods and services using trademarks and generic terms. Secondly, their use of differing definitions give rise to problems. The criteria they employ, for example, for a term to be qualified as generic is the opposite of the EU regime for GIs and even that used in trademarks. A third source of problems arises from the US’s requirement that China identify ‘unprotected’ components of goods which are multi-component GIs.
We need not be distracted by these details for now but we should not miss the note of caution captured in a recent assessment of the situation, namely that, “The EU is at a crossroad: EU GIs are under US fire, and the US-China Agree-ment is just one example of that fire”. There is an urgent need for the international community to address this problem.
For readers with an interest in this area and how attempts are being made to resolve it I recommend
(https://www.wipo.int/edocs/mdocs/geoind/en/wipo_geo_bud_15/wipo_geo_bud_15_17.pdf)
Yours faithfully,
Carl Greenidge
