GEOGRAPHICAL INDICATIONS – Much Expectation Yet No Law in Sight

Kenya’s coffee is a preferred beverage of many worldwide. Kenya’s tea is equally brewed in many homes and restaurants all over the world. The sad news is that it seems to be quite some time before these (among other exports), will be registered as Kenyan brands under what is known as geographical indications or simply […]

GIsKenya’s coffee is a preferred beverage of many worldwide. Kenya’s tea is equally brewed in many homes and restaurants all over the world. The sad news is that it seems to be quite some time before these (among other exports), will be registered as Kenyan brands under what is known as geographical indications or simply GIs.

A geographical indication can be defined as “a designation which identifies certain qualities or other characteristics or the reputation of a particular product to a specific geographical locality”. Protection of GIs is provided under articles 22 to 24 of the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Article 22 of TRIPS defines GIs as “indications which identify a good as originating in the territory of a member, or region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin”. Both the Paris Convention and the Lisbon Agreement also provide for protection of GIs. GIs are essentially a marketing tool. They are intended to designate product quality, highlight brand identity and preserve cultural traditions.

In Kenya, the search for GIs legislation has been ongoing for a long time. From as early as the year 2001, proposals for draft GIs legislation have been debated by various stakeholders. The Geographical Indications Bill 2007 is still pending. In January 2006, the Kenya Industrial Property Institute (KIPI) sent a proposal for a technical cooperation project in the field of GIs to the Swiss Federal Institute of Intellectual Property (IPI). After a feasibility study by a consultant, the Board of Directors of IPI approved a proposal for a technical cooperation program between the two countries in December 2008. According to a memorandum of understanding between the two partners signed in 2009, the GIs legislation crafting project will be carried out in three main phases.

It is hoped that the cooperation between Kenya and Switzerland will help overcome some of the problems that developing and least developed countries face in setting up GIs. One challenge that these countries face is the cost element. There needs to be a careful balance between the cost of protection of a GI against its profitability. According to the Organization for an International Geographical Indications Network (OriGin) Secretary General Massimo Vittori: “there are costs involved in setting up a GI, notably to define specifications, and that would represent a cost for developing or least developed countries, which need financial assistance, for example, to create producers associations“.

GIs protection is a controversial subject, particularly within WTO. As the debate rages on within WTO, as to whether to extend additional protection offered to GIs to wines and spirits in article 23, to other products such as foodstuffs and crafts, it is hoped that the TRIPS Council will speedily resolve the matter. In the meantime, the wait for Kenyan GI legislation continues.

By David B Opijah in Nairobi, Kenya