In this instalment, we canvass the extent to which geographical indications are accorded special protection over and above that accorded to ordinary trademarks.
OPINION BY RICHARD PASIPANODYA
Our trademarks law does not specifically provide for special protection to geographical indications over and above that extended to ordinary trademarks. Neither does the regional Banjul Protocol on Marks to which Zimbabwe is a state party.
That notwithstanding, this local and regional legal lacuna, Zimbabwe like all other state parties to the World Trade Organisation (WTO), is obliged to provide for the protection of geographical indications or appellations in their domestic laws in compliance with Articles 22-24 of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs Agreement).
Geographical indications defined
Article 22(1) of the TRIPs Agreement defines geographical indications as those signs of trademarks which identify a good as originating form a place, locality or region of the territorial boundaries of a given WTO member state. Thus the essence of geographical indications over and above performing the four other functions of ordinary trademarks, namely source or origin, distinguishing, advertising and creation of goodwill, lies in guaranteeing the consumer the goods to which they are attached are possessed of a given quality, reputation or some other characteristics attributable to their geographical area of origin.
The special protection accorded
The special protection accorded to geographical indications is with respect to preventing all unauthorised third parties from any form of use which falsely indicates goods to which the geographical indications is attached emanates from a certain geographical area other than the true source of origin.
Further, any form of use which constitutes unfair competition is to be prohibited. In this regard member states are obliged to more motu (at their own initiative) or at the instance of third parties, refuse or invalidate the registration of such deceptive offending geographical indication trademarks.
With respect to wines and spirits
Geographical indications attached to wines and spirits are specifically mentioned as deserving additional protection. Apart from preventing the use or refusing or invalidating such registrations geographical indications which are accompanied by expressions such as “like”, “kind”, “type”, “imitation”, etc for wines are specifically prohibited. So too are their translation or homonymous indications precluded from statutory protection.
Why special protection
The rationale of extending special protection to geographical indications is at least three pronged. The first one being to protect the proprietor from unscrupulous predators. The second being to protect the less sophisticated and gullible consuming public from the lure of imitations or fake products, hence maintain the standards and quality of the products. The third being to brand not just the product but the locality, area or region within which the product emanates, hence the country of origin itself. Plausible, is it not?
Where does Zimbabwe stand
Foremost, by our failure to specifically legislate on geographical indications our law is found wanting in terms of compliance with the TRIPS Agreement. Further, this translates into exposing our otherwise world renowned products, hence failure to sufficiently brand the product itself and Zimbabwe. This also results in both the proprietor and consuming public’s failure to appreciate the value and importance of geographical indications. This is an area of our trademark law we need to urgently revisit.
Examples of geographical indications
Mazoe Orange Crush: Schweppes (Pvt) Ltd’s Mazoe Orange Crush is globally renowned, at the least prevalently here in Africa and the European Union Market. Mazoe is an estate some 40km north of Harare towards Bindura town municipality. It is an area of very rich red soils, plenty of irrigation water from the winding Mazoe River, appropriate high temperatures and above average summer rain falls.
The manufacture of the Mazoe beverage drink has always been done through strict observance of certain standards and procedures. Thus in all respects the Mazoe beverage drink qualifies as bearing an indisputably befitting geographical indication trademark worthy of protection.
Odzi beverage: Alas! We had the short lived Odzi beverage drink. It had its own quality of taste presumably attributable to the perennial irrigation from the Odzi River flowing between Rusape and Mutare. It enjoyed its own suitable climatic conditions and soil profile. What then went wrong? Ignorance and lack of appreciation of the essence of geographical indications played a bigger part of the demise and disappearance of this locally produced beverage which had already made inroads into regional and international markets.
Kariba breams: Our Kariba bream is known to be the tastiest bream the world over. Nowhere else in the world are such breams found inland. This is attributable to fresh warm waters of the Kariba Dam which doubles as a boundary between Zimbabwe and Zambia. The Kariba basin enjoys very hot temperatures for the greater part of the year which breeds ideal feeds for the fish. What again happened to those tinned Kariba fish which were a favourite both on the local market and extra-territorial.
Tiger fish: Still at Kariba we have the tiger fish which has spawned a yearly tournament sponsored by corporates around the globe. Though much smaller than those found in the Democratic Republic of Congo and the Great Lakes, our Tiger fish possess some attractive uniqueness about them. so why not take an initiative in geographically branding this Tiger fish?
Trout: The hotel Troutbeck is named after the trout fishing in Nyanga. Trout fish is one of the rarest species of fish found mainly in the warm Indian Ocean territorial shores and rarely in cold inland areas like Nyanga. It is for this reason that it is possessed of unique qualities. Again, where do we go wrong in failing to geographically indicate as such?
Alcoholic beverages: Here we have in mind the Zambezi Lager from Delta Corporation. At one time it had invaded not only the local and regional beer markets but European Union markets such as the UK. The Amarula is yet another alcoholic beverage whose origins are rooted in Zimbabwe. Once more the question is where did we go wrong in failing to strongly brand these products by geographical origins?
Tanganda Tea: This is a tea named according to its geographical origins in Manicaland. The “Bright and Fresh” slogan say it all. The speciality of this tea beverage is attributable to the soils and climatic conditions for its production.
Currently we do not see the Nyanga Tea which was a prominent and conspicuous brand of tea on our shelves not so long ago. What caused its disappearance despite its renowned geographical origins of the pristine Nyanga mountainous terrain and cool climatic conditions?
From the foregoing need we say more? No! That would be superfluous, suffice to state the above few examples amply demonstrate the potential multitude of our products that can bear their unique geographical origins.
- Pasipanodya is an IP consultant who writes in his own capacity. Feedback on: Mobile +263 775 053 007 or e-mail firstname.lastname@example.org