The Benefits of Legislation on Geographical Indication in Nigeria
What is Geographical Indication
A Geographical Indication (GI) is a sign which identifies goods as originating from a specific locality or region in a country whereby a given quality, reputation or other characteristics are essentially attributable to the specific locality or region. There must be a clear link between the product and the original place of production as the quality depends on the geographical place of production. This indicates that there is a connection between the product and its place of production. GIs are typically used for agricultural products, foodstuffs, wine and spirit drinks, handicrafts, and industrial products.
• Darjeeling Tea from Darjeeling India.
• Cuban cigars which are made from tobacco leaves grown in Cuba and roughly rolled into shapes.
• Champagne which is produced from grapes grown in the Champagne region of France.
• Tequila which is a distilled beverage made from the blue agave plant, primarily in the area surrounding the city of Tequila, Mexico.
• Scotch whiskey which originates from Scotland.
Geographical Indication rights are territorial and limited to producers in the geographical area who comply with the specific conditions of production for such products.
A geographical indication that has already been protected in its country of origin can seek its protection in other countries through the various means of protection as required by law in those other countries.
A geographical indication enables those who hold the right to use the indication to prevent its use by a third party whose product does not conform to the applicable standards of production of the holder of the right.
Prominence and Economic Potentials of Geographical Indications.
Geographical Indications are tools for commercial product promotion. They can increase economic value, create money, and shield the producing area from invasive counterfeiting activities. Among other things, they support economic growth, increase product exports, enhance domestic markets, and advertise items as well as their historical and cultural legacy.
Moreover, Geographical Indications contributes to the economic and social growth of rural communities. The added value created by a Geographic Indication belongs to all local producers because they typically have the right to utilize it. Also, they might benefit a region by promoting the area as a whole in addition to creating jobs and raising income levels.
From 2011 to 2017, there were 3,153 GIs registered in the 28 Member States of the European Union. In 2017, the estimated sales value of GIs was EUR 74.8 billion. Since 2010, the overall sales value that GIs have covered has increased by 37%1.
Protection and Exploitation of Geographical Indications
Geographical indications are protected in different countries and regional systems through a wide variety of approaches and often using a combination of two or more approaches. The most common are:
a. Sui generis systems (i.e., special regimes of protection);
b. Collective or certification marks; and
c. Methods focusing on business practices, including administrative product approval schemes.
The Collective system is a protection granted for a renewable period of ten years while the Sui generis system is not subject to a specific period of validity but remains valid until the registration is cancelled.
Who may apply for Geographical Indications Protection?
• Protection may be requested by a group of producers of the product identified by the geographical indication.
• The producers may be organized as an entity, such as a cooperative or association, which represents them and ensures that the product fulfils certain requirements which they have agreed upon or adhered to.
• Protection may also be requested by a national competent authority (for example, a local government authority).
Rights to Geographical indications are issued by authorized bodies after undergoing the required procedure. In some countries, the responsibility of issuing such rights can be carried out by a specific agency while in other countries it is done by the intellectual property office.
In order for a sign to qualify as a Geographical Indication, it must be in line with the relevant laws and not hindered by any obstacle before registering Geographical Indication. It is important to note that the product seeking Geographical Indication must be connected to the geographical origin. This connection may be determined by its quality or features attributed to the geographical origin.
Usually, in most places where a single criterion is attributed to a geographical origin, it is sufficient.
ENFORCEMENT OF GEOGRAPHICAL INDICATIONS.
The rights of Geographical Indications are enforced in various jurisdictions, usually by the court of law based on applicable laws in such jurisdictions. An interested person whether natural or juristic, public or private, competent authority or a prosecutor can commence an action in matters related to Geographical Indication. The remedy or sanctions provided for under applicable laws could be in form of civil liabilities such as damages, restraining injunctions, or prohibition of unlawful acts which may be administrative or punitive.
GEOGRAPHICAL INDICATION IN NIGERIA.
Nigeria does not currently have any specific legislation centered on Geographical Indication. However, Section 43 of the Trademarks Act of 1965 provides protections for Geographical Indications upon proof of their origin, their community, quality characteristics or method of manufacture, which must be connected to the origin of the products.
Similarly, the Trademark Act also does not provide extensive protection for goods produced in Nigeria as the Act is seen to have accorded limited protection to such goods; hence the need for a law that protects Geographical Indication in Nigeria; seeing that Nigeria is naturally enriched with lots of distinct, geographically identifiable products, reputed for their quality, locality and other special characteristics, such as:
1. Benue Yam from Benue
2. Ofada Rice from Ofada
3. Abakaliki Rice from Abakaliki
4. Kola-Nut from South-Western Nigeria
5. Palm Oil from South-Eastern Nigeria
6. Aso-Oke from South-Western Nigeria
7. Adire textile made in South-Western Nigeria
8. Ijebu Garri from Ijebu
9. Benin Bronze Art from Benin
Without any indication of their Nigerian origin, the majority of our products are consumed outside of Nigeria, depriving the nation of the enormous economic advantages that Geographical Indication may provide.
The lack of laws on geographical indication in Nigeria has hindered the nation from benefiting from Geographical Indication globally as there are no structures that the international bodies can rely on to help protect Nigerian goods across the globe. Some of these laws includes; the Paris Convention, Madrid Agreement and the Geneva Act of Lisbon Agreement on appellations of origin and geographical indications 2015.
In an article titled Nigeria’s quest for its own statute for the protection of Geographical Indications gains momentum2 dated 17th March 2022, it was noted that in April, 2021 the Intellectual Property Rights and Innovation Project in Africa organised a workshop on Geographical Indications, and thereafter, the Nigerian Technical Working Group on Geographical Indication was established. The Technical Working Group was tasked with the responsibility to study various Geographical Indication laws across several jurisdictions and to produce a Geographical Indication draft bill that takes cognisance of the unique contexts of the Nigerian environment whilst meeting global standards.
However, there has been delay in bringing a bill on Geographical Indication before the National Assembly as some key issues are yet to be addressed. One of these issues includes a contemplation on whether the Federal High Court or State High Court should have jurisdiction in matters pertaining to Geographical Indication. Although, these issues are still pending, they can be easily resolved, seeing that under section 251 of the 1999 Constitution, the Federal High Court has exclusive jurisdiction over trademark related subject matter and same can apply for Geographical Indication.
We are hopeful that the Technical Working Group will hasten the submission of the final draft that will be forwarded to the Ministry of Justice, and upon approval, the draft will be sponsored by the National Assembly as an Executive Bill. This will in no small measure assist Nigeria to take part in the benefits of Geographical Indication.
BENEFITS OF GEOGRAPHICAL INDICATIONS IN NIGERIA.
There are various benefits of Geographical Indications which can massively enhance the economic growth of Nigeria such as:
The growth and expansion of Geographical Indications will enable Nigerian producers generate greater value for their products: Such as Agricultural products, which have names that are protected by the European Union as Geographical Indications represent a sales value of billions of dollars. Currently over one-fifth of the amount is generated by exports that originate outside of the European Union, and some of these products come from Nigeria. With this protection, therefore, Nigeria can benefit from this value as well.
Also, seeing that Nigeria has lost so much value to cultural appropriation, there is a need for that to come to an end. Nigeria can strategize and reposition itself as a major supply chain to key nations. Beyond representing itself as a major supply chain to key nations, it is important to note that Geographic Indication presents a huge opportunity for indigenous exporters who can now capitalize on improved product reputation and the willingness of consumers to pay a premium for authentic products.
Additionally, Geographical Indication can serve as a major element in developing collective brands for quality bound to Nigerian Origin. It can also, serve as a tool that Nigerian producers can use to promote the potential of their products and open new pathways for trade and more inclusive development.
Furthermore, Geographical Indication will enable Nigeria to prevent the use of its products by a third party without permission and whose product does not conform to applicable standards. This will lead to an increase in Nigeria’s retail price and will also prevent registration of Geographical Indication as a trademark by a third party, and reduce the risk of the indication becoming a generic term.
Finally, Geographical Indication in Nigeria can encourage competitive advantage, add more value to locally manufactured products, increase export opportunities and earnings in foreign exchange. This will contribute positively to Nigeria’s GDP as opposed to the current economic outlook that portrays the Nation as a dump site for dead products from all over the world.
Nigeria has a lot to gain from an effective Geographical Indication system if only relevant stakeholders can take measures to see this through. Below are some recommended measures:
Nigerian products in other countries do not have a proper geographic indication, as there have not been any conscious effort to protect these products and accord them appropriate geographic identity. Due to lack of proper identity, Nigeria has continued to miss out on the several benefits these brands would provide if properly identified and protected. It is believed that enacting the Geographic Indication Bill will be a right step in the right direction, as this Bill among other things will create awareness, information, motivation, and direction towards proper identification and protection of Nigerian brands in the diaspora, as well as help Nigeria enjoy some of the benefits they provide. In addition to enacting a Bill, there is also the need to create a special agency or council which shall be exclusively responsible for the administration of Geographic Indication issues in Nigeria.
Beyond the Geographic Indication Bill, there is also the need for a coordinated, well-planned and executed crusade for the awareness, training, and sensitization of the Nigerian people, particularly those who are specifically involved in the identifiable Geographic Indication products in Nigeria. With the right information and training, relevant groups and agencies in Nigeria can take the steps to identify key geographic Indication products in Nigeria, with the bid to protect those products. This includes collecting information about the products as may be required for the protection and preparing appropriate documents. Where necessary, this documentation and information may be collected and prepared in anticipation of the enactment of the Bill.
There is also the need for the relevant agencies in Nigeria to explore bilateral and multilateral agreements with relevant international entities towards the protection of Nigerian Geographic Indicated products. With the right partnerships and agreements, Nigeria and Nigerians may still benefit from these products. These agencies may take steps to expose Nigerian products to the international communities in a way that identifies these products as Nigerian Geographically
Indicated. With this awareness, it may become difficult for these products to become general products, or for such geographic indications to be converted.
In order to have utmost benefit of the Geographic Indicated product in Nigeria, these products need to meet certain minimum expectations in terms of quality, quantity, value creation, etc. This requires that the relevant agencies in Nigeria such as the Standards Organization of Nigeria (SON), the National Agency for Food and Drug Administration (NAFDAC), the Federal Competition and Consumer Protection Commission (FCCPC), etc. which ordinarily have the responsibility for ensuring the quality and safety of products and services in Nigeria, will have, to define what these minimum expectations, quality standards and other criteria should be, and to ensure that these geographically indicated products meet such minimum standards before they are introduced to the markets.
Finally, Nigeria will need to identify international best practices in this sector, such as international treaties, the World Trade Organization (WTO), and the WTO agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as well as all other relevant treaties, ratify these treaties to the extent they protect the interests of Nigeria and Nigerians, as well as play leadership roles to see that Nigeria benefits optimally from these treaties.
*Blessing Ajunwo – Choko and Afam Chukuka are Managing Associate and Associate respectively at Alliance Law Firm, Lagos.
1. World Intellectual Property Organisation, Geographical Indications: An Introduction, available at https://www.wipo.int/edocs/pubdocs/en/geographical/952/wipo_pub_952.pdf), accessed 22 February 2023
2. Nigeria’s quest for its own statute for the protection of Geographical Indications gains momentum, available at (https://ipkitten.blogspot.com/2022/03/guest-post-nigerias-quest-for-its-own.html) accessed 22nd February 2023