By Ekenobi ThankGod Chinonso.

Introduction.

It is no longer news that the Nigerian economy is currently experiencing another round of recession, this is coming barely 3 years after the nation exited it’s first ever recession in over 30 years. The Nigerian economy as we all know is an oil dependent economy, as oil still contribute the major proportion of the nation’s annual revenue at 89%, the need for a departure away from this over dependency on oil has been advanced and canvassed by both economists and non-economists, this is apposite especially considering the fact that several countries have set deadlines for the elimination of petrol vehicles in their countries, due the poisonous effect of its gaseous emissions to the air and the migration towards clean energy, as a way of addressing the root causes of climate change and global warming, some countries have pegged their deadlines at 2025, others 2030, and 2040 respectively. The need for nigeria to diversify its economy away from  an oil dependent economy, to an economy that is more dependent on agriculture, natural products, foods, handicrafts etc, goes without saying, considering its rich human, natural, agricultural and intellectual resources. However, the place of Geographical Indication to the protection of these products against counterfeiting and free riding, helping Nigeria gain a niche in the international Market, generate revenues for the rural areas where most of these goods are produced, and Nigeria at Large, and above all, providing jobs for the mostly rural people, can not be ruled out. The desire to protect intellectual property, by ensuring that only the originators of the products and inventions have exclusive rights to benefit, control the production and distribution of their goods and products, eliminate free riding and unfair competitions, has been at the fore of intergovernmental efforts, this has led to different Treaties and Agreements since the 19th Century, to protect intellectual property works, by ensuring that only the originators of such inventions have exclusive rights to benefit from them, while also encouraging new inventions for the common good. Several Multilateral treaties have been adopted to protect intellectual property, this include the Paris Convention 1883, Madrid Agreement 1891 and Madrid Protocol 1989, the General Agreement on Tariffs and Trade (GATT), 1947 and 1994, the Stressa Convention of 1951,  Lisbon Agreement 1958 Revised by the Geneva Act of 2015, TRIPs Agreement 1994 reached at the World Trade Organization (WTO) Convention. There are different types of Intellectual Property rights as we know, these Include: Patent, Trademark, Copyright, Geographical Indication, Trade Secret, Integrated Circuit, etc, two or more of these can be combined in some cases, depending on the type of product and the type of system adopted. This article therefore, examines the concept of “Geographical Indication” as an Intellectual Property right, Origin of Geographical indications, Types and Examples of Geographical Indications across the world, Laws regulating Geographical Indications both at the Global, Regional and Domestic Level, the Importance of geographical indication to Nigeria, The Need for a more Efficient Legal Regime, and then, Recommendations and Conclusion.

Definition of the term Geographical Indications as an Intellectual Property right.

Geographical Indications has been defined by the World Intellectual Property Organization (WIPO) as ” a sign used on products that have specific geographical origin and possess qualities or reputation that are due to that Origin”. Geographical Indications (GIs) apply to products whose unique attributes, features or popularity is obtained from their geographical origin (Sand Mba Kalu). Under the TRIPs Agreement, geographical indication was defined as any indication “identifying a good as originating in the territory of a member, or a region or locality in that territory, where a given quality, reputation or other characteristics of the good is, essentially, attributable to its origin”. For a good or product to qualify for registration and recognition as a Geographical Indication, it must have certain attributes, characteristics, qualities and reputations that are mainly due to the geographical area where it originated from, the mode of production, materials used in the production, the quality of the product, and certain other features must be peculiar only to the geographical area of origin, or the human or natural factors in that territory, and must not contain some misleading attributes capable of conflicting with that of similar products registered under a different domain name, it must also not conflict with a prior trademark registered in good faith, it must also not consist of a generic term which has come to be associated with a specific product in a given territory. Also for a product to qualify for protection under International law as a Geographical Indication, it must have been registered under the domestic laws of its place of Origin, and such registration must remain valid i.e must not have expired. Geographical Indication serves to Identify the relationship between the qualities, characteristics, and reputation of a good in relation to its place of origin, so as to detect counterfeits and ensure the maintenance of quality and guarantee wealth creation for its territory of origin. Geographical Indications may be registered by the domain name of the place of Origin of the good or product, i.e Swiss Watches (Switzerland), Hangzhou Lacquerware (China), Bohemia Crystal (Czech Republic), Blue Mountain (Jamaica),  Darjeeling tea (India) , or with some figurative expression having a distinct meaning peculiar to the geographical area of Origin, i.e Reblochon (France), Argan oil (Morocco), Vinho Verde, Cava. The quality of the product and its attributes must be traditionally linked to the geographical area of its production, and must be peculiar only to such geographical area. Geographical Indications can be used for variety of products, which interalia, include Agricultural products, Foods, Wines and beverages, industrial products, meat, Wines, and handicrafts.

The distinguishing features of geographical indications from other Intellectual property rights, are thus:

“It is an indication;

It originates from a definite geographical territory;

It is used to identify agricultural, natural or manufactured goods;

The manufactured goods should be produced or processed or prepared in that territory;

should have a special quality or reputation or other characteristics”.

Distinctions between Trademarks and Geographical Indication

Geographical indications is different from Trademark for the following reasons. Firstly, while trademark refer to a distinctive mark, sign, logo, name, sound, word, shape, colour, acronym, or certificate that distinguishes the goods and products of a firm from similar goods and products of a competing firm, for the sake of quality and reputation. Geographical indications on the other hand, refer to those distinctive signs that distinguishes goods and products in relation to the qualities, characteristics, and reputation peculiar only to its territory of origin, so as to guarantee quality and, promote the local traditional know-how, and in return, secure wealth to the local people of that territory involved in the production, processing or manufacturing. In other words, while trademark is an individual property which is the exclusive right of such individual firm, corporation, or in some cases, collective or government, and which is enforceable at the instance of such individual firm, or corporation, Geographical indication on the other hand, is a community, or territorial, or regional right, which can be enforced by the producers through their authorized representative, or the government.

Secondly, under Trademark, there is usually no definite or specified quality a product must conform to, conversely, for a product to qualify for protection under the geographical indication, it must meet the criteria laid down in a document known as ” the code of practice or standards specification”, this is done by stating in the document the characteristics, criteria, quality and procedures such product must conform to be eligible to be certified, and certain systems and control measures are usually put in place to carry out regular verification, thereby ensuring that users from time to time comply with the proposed standards of production.

Thirdly, While Trademark can be transferred to anyone, and anywhere, either unconditionally, or  upon certain terms and conditions. On the contrary, Geographical Indications which is linked to the origin of a good or product, cannot be “transferred” or “de-localized”, it is a community right, exclusive only to goods and products originating from the locality and which must conform to the quality, characteristics and reputation peculiar to that territory.

Fourthly, In the case of Trademarks, the burden of protecting and enforcing the trademarks right is a private responsibility, and such responsibility rests entirely on the trademark’s owner, and does not concern the public. Whereas in the case of Geographical Indications, the right is a public right, hence it is the responsibility of the government to identify any act of infringements, enforce and protect it in the public interest, though in some cases private individuals might have the burden of Identifying where infringement to Geographical Indications has occurred, and reporting same.

Fifthly, Use of Trademarks is majorly private in nature, and can be licensed to anyone subject to meeting certain led down conditions, while Geographical Indications is a collective right, hence, available to all producers who are from the territory, and whose products meets or complies with certain rules as to qualities, characteristics and reputation associated with the territory of origin.

Sixthly, under Trademarks, eligiblity to register using origin name is based on a first in time-first in rights, whereas in the Case of Geographical Indications, there is no such thing as “first in time – first in rights, geographical indications distinguishes bona fide rights to origin, and once registered, it secures and confers rights on all bonafide producers and manufacturers whose products and goods draw it origin, qualities and reputation from the geographical Area.

Lastly, under Trademarks, name, symbol, logo, word, shape, sound, and any other sign intended to be used may be created, in other words, it may be fabricated using non-existent graphics, hence it may or may not have any specific origin. However, any name which is intended to be registered as geographical indication must have a territorial link and such territory must be in existence at the time of application, hence fictitious names of some non-existent territorial names are not eligible for registration as geographical indications.

Historical Origin of Geographical Indications and Current International Treaties Protecting GIs.

The historical Origin of Geographical Indications dates back to the ancient Greek and Roman period of the early 4th Century BC, when renowned brands of products were mostly associated with the geographical areas of Origin, such included Wines from the Greek Island of Chios, which was the most expensive luxury goods of Classical Greece Origin.

However, the first international treaty recognizing Geographical Indications and Appellation of Origin was The Paris convention for the Protection of Industrial Property (1883), which was the first international treaty to recognize indications of geographical origin in article 1(2), and defines “Indications of source” and “Appellations of Origin” indirectly as “an indication referring to a country, or to a place stated therein as being the country or place of origin of a product”, indications of source merely provides information about the origin of a product, and do not necessarily provide information about its qualities or attributes, it can also contain iconic emblems and symbols which points to the geographical origin of the product, such as the inscriptions “made in Hangzhou China”, “a product of Paris”, etc. The Paris Agreement also empowers member countries to seize upon entry into its territory, any imported product which bear deceptive or misleading information as to its place of origin, and enforce available remedies against its purveyors, and also mandates member countries to put in place adequate mechanisms against unfair competitions, currently, there are 176 member States registered under the Paris Agreement.

This was followed by the adoption of the Madrid Agreement for the Repression of False Deceptive Indications of Source of Goods 1891(Madrid System) and the Madrid Protocol (1989) both of which are administered by WIPO, the Madrid protocol became operational in 1996 and amended in 2006 and currently has over 84 members including US and EU, as at 2017, about 1200 Collective and Certification marks were registered under the Madrid System and still counting. Examples of Popular collective and Certification marks registered under the Madrid System include among others, Italian Parmigiano Reggiano for Cheese, US Napa Valley for Wine. Under this system, for a product to be eligible for registration, it must possess certain qualities and attributes that are due mainly to the Geographical environment, including the human and natural factors. Under this system, owners of the proposed marks may file one application with their national Trademark or IP office indicating their countries of interest, such country must also be a member state, upon notification of an application, members enjoy the right to decline protection within a specified length of time, after which the registration takes place as if it had been registered by that Country, subsequent alterations can also be done using the specified methodology. Under this system also, deceptive indications are prohibited, hence where there are homonymous territorial names in two different countries, but only one of these two different territories is popular for producing a certain product, the other similar named, but unpopular territory, would not be allowed to use a similar name for goods produced in its territory, as it has the potential to mislead the public as to the true place of origin of the goods.

The Lisbon Agreement for the Protection of Appellations of Origin and their International Registration 1958 (Lisbon Agreement), which became effective from 1966 and revised in 1967(Stockholm), but last amended in 2002, the aim of this Multilateral treaty was to engender Protection of Appellations of Origin under International law through a single procedure for registration with the WIPO International Bureau, such Appellations of Origin upon registration, would not require a renewal, for as long it still enjoy protection in the place of Origin which must also be a contracting party, each contracting party reserves the sole prerogative to decide either to accord or refuse its protection to the appellation of origin in its jurisdiction, such assent or refusal must however, be communicated within 1 year of being notified, reason for refusal may be due to one of the following reasons: i. If the appellation of origin conflicts with some generic terms that has been ascribed to the product in that territory. ii. Where the appellation would conflict with trademark duly registered by a bona fide undertaking prior to the notification. iii. Laws, Judicial or administrative decisions. Over 887 Appellations of Origin have so far been registered under this system. The Lisbon Agreement was revised in 2015, with the adoption of the Geneva Act of the Lisbon Agreement 2015 (which came into effect early 2020), under this Act, member States who joined the Lisbon Agreement can obtain protection for their Appellations of origins and geographical indications in other member States through a single application, more than 30 countries are currently parties to the Lisbon Agreement and Geneva Act, with over 9,000 geographical indications already registered in its member states.

The Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement (1994), which is applicable in all member States of the WTO, also protects GIs. The Agreement defines GI and mandates members to ensure a holistic protection for GIs and prevent deceptive and misleading use of GI, and by extension, prevent unfair competitions. It also gives members the responsibility of rejecting or invalidating trademarks which contains a semblance of GIs used for goods not originating from the territory indicated, if such trademark has the tendency to mislead the public as to its geographical area of origin. Articles 22-24 of the TRIPs agreement also places an obligation on WTO members to provide protection for GIs, and prevent its use in relation to wines, spirits, and registration of such indications as trademarks, irrespective of whether or not it has the potential to mislead the public as to its true origin. However, certain exceptions were provided in the TRIPs agreement, for instance, A trademark registered in good faith in a WTO member state before the date of coming into force of the Agreement in that state, or before the GI is protected in that member state. Second exception is where the indication has become a generic term in the WTO member state, and has become known as the customary name for the indicated product in that state. Third exception is in the area of wine, for WTO members in which such indications have been used for wines in a similar manner for a very long time. About 164 countries are currently registered as members of the WTO as at August, 2016.

Types and Examples of registered Geographical indications across the world.

As has been stated earlier, Geographical indications come under different forms in different Countries and under different names.

In America for instance, it is known and registered as Certification marks, instead of Geographical indications, the US does not have a registration system that expressly protects GIs, though it Recognizes TRIPS provision on GIs. GIs may be protected in the form of a Geographical Certification mark, even though the USPTO does not acknowledge if a certification Mark is a GI. The standard for registration for a geographical certification Mark in US is lower compared to that for registering a GI under TRIPs, the goods or products seeking protection under geographical certification mark need not have a certain quality, characteristic or reputation to be registered in the US, examples of registered certification marks in the US that can also be classified as GIs under the TRIPs agreement include: Napa valley for wines; Columbian for Coffee; Florida for Citrus; Washington for Apples; Vidalia Onions; Wisconsin for Cheese; West Indies for Fabrics; Idaho for potatoes; Asti for wine. Geographical certification Mark is usually owned by a government agency, producers’ association representing the producers of such goods or products within the geographical area, or a corporation, and not the producers themselves, IDAHO potato commission owns registration for IDAHO certification mark for potatoes. However, a certification Mark is often not used by its owner; the owner of the Certification mark may promote the mark and the goods, but cannot sell the goods under the Certification mark; Certification mark owner may own service marks or trademarks which may include the geographic term, as long as the trademark or service mark is distinguishable from the geographical certification mark; Certification mark can not be used for any purpose other than that for which it has been registered, except for advertisement of the Certification program services. Over 1000 certification Marks that specifically cover geographical origin and could be regarded as GIs have been registered in America. The TRIPS Agreement mentioned Certification Marks under Article 2.1. However, the United States do not protect geographic expression, or sign that has become generic, for instance, the term “Swiss” has become popular for cheese, and “Bermuda” for shorts, hence cannot be protected. Certification marks is most similar to the Appellations of Origin which is applicable in most parts of Europe.

Geographical Indication: this is a mark which identifies goods such as Agricultural products, manufactured products, and natural products, as originating from, or manufactured in the country, region, territory, district where a certain reputation, quality, or characteristics of such goods is essentially due to its geographical origin, and in the case of manufactured goods, one or more of the aspects of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality. Countries who use Geographical Indications are, India (GI Act of 1999), Latvia (Law on Trademarks and Geographical Indications), Georgia (Laws on Appellations of Origin and Geographical Indications of Goods, of 1999), Poland (Industrial Property Law of 30th June 2000), Romania (Law no.84/1998 on Marks and Geographical Indications), Vietnam (Intellectual Property Law, 2005), etc. Example of goods successfully protected under geographical indication is Asiago cheese, this geographical indication is not owned by an individual or a firm, it is being managed by the Consorzio Tutela Formaggio Asiago in Italy, Asiago cheese received PDO in 1996, and was certified after 20 years. As at November 2002, 55 companies within the geographical region have been certified to produce Asiago Cheese. To ensure that minimum standards is maintained, the consortium requires that each production maintains certain led down control records including such details as to origin, and quality of milk used in the production, quantities, production information, control procedures for the finished product, and full address. In 2002 alone, about 22,000 metric tonnes of Asiago Cheese were reportedly produced, which Consorzio Tutela Formaggio Asiago valued at 900 million Euros.

Appellation of origin:  this was first recognized in the Paris Convention, and was among the earliest forms of GI, the 26 contracting parties to the Lisbon System were the first to agree to give it a legal backing as a form of Geographical Indication which can be registered using a single registration procedure, and be bound by same as if it had been registered in that country. Appellation of origin distinguishes goods and products originating from a territory, whose qualities and attributes are due essentially, to the Geographical factors, human and natural factors in that territory. Parts of Europe and France are signatories to this system. Countries that use appellation of origin include, France (Consumer Code 1919 {modified in 1966, and 1992), Georgia (Law on Appellations of Origin and Geographical Indications of Goods, 1999), Lebanon (Wine Law, 2000), Tunisia (Law no.99-59 on Geographical Indications, 1999), etc.

Collective Marks: these are also used in the United States, this mark may be used by members of an association, cooperative, and other group to indicate that certain goods or products emanated from that collective and has met its standards and qualities. The collective mark may have a territorial identity, and in some cases, it may not have a geographic identity. It may also advertise or promote goods and products of its authorized users, but in most cases, it does not sell their own goods, examples of products protected under the collective marks system are: the Sunkist Co-op, the California Raisin Board. In European countries, it is known as collective trademark, hence a group beneficiaries of “protected designation of origin” (PDO) and “protected geographical Indication” (PGI) may also obtain collective trademark for their Geographical product’s name, logo, symbols, marks, words, shapes, letters, etc.

Indication of Source: this is an expression indicating that a particular product or service originated from a country, region, state or any other place, though it does not make any representation as to quality or reputation, Indication of source as a type of Intellectual Property protection was recognized in the Paris Convention 1883, and Madrid Agreement 1891. Examples of indication of Source are the expressions “Made in China” “made in Italy”  “a product of Japan” “Manufactured in Paris” etc, this indicates the source of origin of a product.

Origin Product: This is a general term which indicates any product whose origin fall into any of the following categories: 1. “1. Implicitly known by the consumer due to long lasting association of the product with its place of origin, 2. Explicitly Identified with that place of origin through a label identifying a GI, irrespective of whether or not the GI is protected”.

Denomination of Origin: this  comprise name of a region, a province, a district or an area within a nation’s territory, registered in such a way as to be used to designate a product originating from that place, and whose quality, characteristics, and features are essentially attributable to that geographic place of origin, in addition to human and natural factors peculiar to that geographical origin. Countries that use denomination of origin are: Chile (Law on Industrial Property, 1991), Costa Rica (Law on Trademarks), Mexico (Industrial Property Law).

European Union’s Community Trademark (CTM): this is a mark registered throughout the European Union community, hence any mark, figurative expression, collective or certification marks registered in one European Union territory, will be registerable across the European Union as a whole. This is done through direct application to the office of Harmonization in the Internal Market (OHIM), or through the national government agency that registered the trademark abinitio. The CTM’s registration is enforceable in all the EU member States, and is applicable to equally to both existing and incoming members. As a general rule, geographic origins cannot be included in the CTM, the exception however, is where the geographic name has become peculiar to the goods and products sought to be registered, then it may be considered to have “acquired distinctiveness” so as to be qualified for Trademark. The procedures for application for Community Trademark is similar to that of the United States and other Countries that uses the Trademark system.

Others are, Geographical Sign; Community Trademark (EU); Collective Trademark(EU). However, all the aforementioned classes are most times used interchangeably to refer to geographical indications, even though some writers have made attempts to distinguish them, others are of the opinion that such hairsplitting distinctions are unnecessary.

World Intellectual Property Organization (WIPO), is the Organization of the United Nations whose function is to engender learnings and discussions on Intellectual Property, it works alongside the World Trade Organization, and currently Administers 24 Treaties. It also keeps registered records of Appellations of Origin.

According to a recent study by the European Commission, Directorate-General for Agriculture and Rural Development on the economic value of European Union quality schemes, Geographical Indications and Traditional Specialties Guaranteed; its findings showed that Geographical Indications registered in the 28 European Union member States, from 2011-2017 was 3,153. The sales value of Geographical Indications for the year 2017 was estimated at 74.8 billion Euros, while the total sales value covered by GIs was reported to to have grown by 37% since 2010.

Examples of popular GIs are, Scotch Whisky (Scotland), Swiss Watches (Switzerland), Havana Tobacco (Cuba), Penja pepper (Cameroon), Bohemian Crystal (Czech Republic), Tete goat (Morocco), Thai silk (Thailand), Hangzhou Lacquerware (China), Blue Mountain (Jamaica), Darjeeling tea (India), Argan oil (Morocco), etc.

Ways through which Geographical Indications can be protected.

Geographical Indications can be protected through any, or combination of the following forms, but any form of protection adopted under a domestic framework, must put to consideration the relevant international treaties to which the party is a signatory. It must be complementary to treaties such as the TRIPS Agreement, Lisbon Agreement, Paris Agreement, Madrid Agreement and Protocol, etc. Depending on the country, geographical Indications can be protected by different types of laws or instruments, these may be in form of any of the following:

* Sui generis or Specific Laws Protecting GIs; like in the case of countries that adopted the TRIPS Agreement and the wordings thereof, over 110 countries have recognized geographical Indications as a separate form of intellectual property, hence, have a sui generis protection for it, e.g. India, Latvia, Romania, Russia, Thailand, Andean Community countries, the African Intellectual Property Organization (OAPI), Switzerland(which has over 682 registered geographical Indications for varieties of product), EU and Commonwealth Nations, etc.

* Laws Against Unfair competitions; Countries can through competition and consumer protection laws make Provisions for the protection of products designated geographical Indications, with the view to eliminate unhealthy competitions, by eliminating the use of fraudulent and deceptive representations by free riders capable of misleading consumers as to the true origin and quality of a product. This system is also provided for in the TRIPS Agreement.

* Through Trademarks Laws, specifically in the form of Collective Marks and Certification Marks; United States of America, Australia and Japan are among Countries that uses this method, it was also specifically mentioned in the TRIPS Agreement. Nigeria also uses this system, as we shall see later. At least, 56 countries have adopted the trademark protection method, with United States having the highest number of GIs protected under Trademarks (over 910).

* Consumer Fraud Protection Laws, especially in the aspect of honesty in labelling, similar to Nigeria’s FCCPA. This system is used to protect goods of certain geographic origins against unfair trade practices like counterfeiting, especially if the said product is from a different geographical area.

* Occasionally, through periodic laws or decrees expressly according legitimate recognition to certain named geographical Indications, and Protecting It against counterfeiting.

What products are eligible for protection under Geographical Indications.

The list of products that are eligible for geographical Indications is endless, these products can be agricultural products, natural products, foods, wines, handicrafts, industrial goods etc. These products include:

*Animal products (milk, honey, cheese, egg, etc.).

* Fresh meat and meat based products.

* Fats and Oils.

* Fish, Crustaceans, Molluscs.

* Cereals, bread, pasta, cakes, pastries, confectionery, biscuits, etc.

* Fruits and vegetables.

* Food spices.

* Beers and beverages extracted from plants.

* Natural mineral waters and spring waters.

* Cork.

* Wool.

* Essential oils.

* Natural gums and resins. Etc.

Current Legal Frameworks Regulating Geographical Indications In Africa.

At the regional level, African Intellectual Property Organization (OAPI) and the African Regional Intellectual Property Organisation (ARIPO) are the two main regional organizations responsible for promoting and protecting GIs across Africa.  The Bangui Agreement of 1977  applies in all OAPI Member Countries, the Bangui Agreement recognizes and protects GIs and appellations of origin amongst its member states. The Agreement defined GI as “an indication that serves to identify a product as originating from a territory, a region, or a locality within that territory, in those cases where the quality, reputation or other specific characteristic of the product may be essentially attributed to such geographical origin.” The Bangui Agreement protects natural, agricultural, handicraft or industrial products upon registration in accordance with the filing procedures laid down in Article 7 of the Agreement. On the other hand, ARIPO, which was created in 1976 do not specifically protect GIs, though it recognizes the potentials of GIs to Africa’s development, hence efforts have been ongoing since 2010 to create an efficient GI system for its member States.

On the other hand, African Union Continental Strategy for GIs (2018-2023), has been Developed in response to the global Sustainable Development Goals (SDGs) agenda, this is in addition to “African Union agenda: Agenda 2063”, which would see GI contributing to the realization of one of African Union’s programs known as Comprehensive Africa Agriculture Program (CAADP). This Strategy was developed through Collaborative synergy between the Department of Rural Economy and Agriculture (DREA); African Union Member States; Regional Economic Communities (RECs); ARIPO; OAPI; WIPO; FAO; and the EU. The formal document was endorsed by Ministers of Rural Development, Agriculture, Environment, and Water resources of all African Union member States at the 5th AU-EU Summit held in 2017. The aim of the strategy is to enable AFCFTA to protect the various GI products originating from different Countries across the African Continent, with a view to avoiding confusion in the market. This Strategy would enable the AU Commission to achieve its vision of Stimulating the Regional and Continental sustainable value chains, with small scale farmers as the primary beneficiaries. However, though the AU Commission is vested with the responsibility of developing a legal framework that each member state can customize for its use putting into consideration the local circumstances in their territories, the discretion as to whether or not to use the framework, and how to use it, rests with each member state; it is the sole prerogative of each member state to decide. According to the policy officer, Department of Rural Economy  and Agriculture, African Union Commission (AUC), Ms. Diana Akullo Ogwai, “the AU has put in place a technical committee that oversees all aspects of GIs protection in Africa and has Identified products (5 each from ARIPO and AOPI regions) that can be fast tracked in a pilot project by the Commission”.

Current Legislative and Policy Frameworks for GI Protection in Nigeria.

According to the Registrar, Trademark Registry of Nigeria, Dr. Shefiu Adamu Yauri, Nigeria currently, does not have a sui generis protection for GIs or Stand alone legislation at the moment, while also highlighting the need for a sui generis or stand alone legislation specifically protecting GIs. He however hinted that hope is underway as efforts are being made to develop a framework or policy for specific GIs protection in Nigeria, this is in addition to the Certification Trademarks system Currently in use in Nigeria.

Currently, the Trademarks Act (1965) of the Federal Republic of Nigeria is the principal act providing protection for GIs in Nigeria. The Act provides under section 43, for the protection of GIs in the following provision “A mark adapted in relation to any goods to distinguish in the course of trade goods certified by any person in respect of origin, material, method of manufacture, quality, accuracy or other characteristic, from goods not so certified shall be registrable as a certification trade mark in Part A of the register in respect of those goods in the name, as proprietor thereof, of that person: Provided that a mark shall not be so registrable in the name of a person who carries on a trade in goods of the kind certified.” This Act covers only Certification Marks similar to that of the United States of America. The procedure and methodology for registration under the Trademark Act is provided for in the Trademarks Regulations (Reg 40-43).

According to Dr. Solomon Gwom, a lecturer of Law at the University of Abuja, other Acts in Nigeria that also play complimentary roles to that of the Trademarks Act are the Merchandise Act (1915), which ensures wholesome practices and prohibits false trade descriptions; the General Systems Act, which deals with law that also mandates customs officers to satisfy goods that are exported out of Nigeria; others are, the Malpractices Act; the Federal Competition and Consumer Protection Act, which prohibits antitrust and anti-competitive practices. Nigeria is a party to the TRIPS Agreement and Paris Agreement, however, she is yet to domesticate them into her corpus juris so as to give it the force of law. Nigeria is not signatory to the Lisbon Agreement, Madrid Agreement (and protocol) and the Geneva Act of 2015, hence these treaties are not applicable to Nigeria. Hence, pursuant to section 12 of the Constitution, the TRIPS Agreement and Paris Agreement do have the force of law in nigeria, until they have been domesticated in accordance with section 12 CFRN 1999(as amended).

Sadly, the lack of adequate and efficient legal framework for protection of GIs in Nigeria has been detrimental to the economic development of the country, and has equally constituted a clog in the wheel of the country’s efforts to maintain its position as one of the fastest growing economies in the world, a position which the country lost in the wake of fall in price of crude oil which has remained the country’s major export at 89.3% in 2019. Nigeria as the giant of Africa, has a lot to benefit through the utilization of GIs to protect the country’s culturally rich products, especially as the country has over the years consistently emphasized on Economic diversification, geographical Indications would also help the nation gain a niche in the international market by promoting its rich agricultural products, foods, handicrafts, etc.

Due to the loopholes in legal framework resulting in nonavailability of effective legal protection for geographical Indications in Nigeria, several products of Nigerian origin, have unfortunately, been misappropriated by other countries that have got an efficient legal framework for geographical indications, for example, goats skins of Sokoto origin have been rebranded as Moroccan leather; Benue Yams have also been misrepresented as Ghana Yams in the foreign markets; Some made in Aba shoes are being misrepresented as Italian shoes, and several goods of Nigerian origin which have also found their ways out of the Nigerian borders to neighboring countries where they are falsely rebranded and misrepresented as goods originating from those countries.

According Dr. Yauri, Nigeria currently has about 10,000 geographical indication products, these include: Cotton from Taraba; Nsukka yellow pepper; Yam peps from Benue; Potatoes from Plateau; Goat skins from Sokoto; Kebbi rice (lake rice); Ofada rice with its stew and leaf; Gongola Highland tea; Ijebu garri; Afikpo rice; Abakaliki rice, Adire, groundnuts, Adani rice, cocoa from Southwest, kolanuts, etc. These products need to be adequately protected as geographical indications due to their unique qualities, characteristics, and reputations which are essentially due to their origin and cultural practices and know-hows used in their production and processing. This would also be a boast to trade, and has a potential to improve the nation’s economy, while also impacting sustainable development goals, and attracting development to the rural Communities.

Although there are proposed bills currently before the National Assembly, that seem to offer better protections for Geographical Indications, these includes the Trade Mark Bill, and the Intellectual Property Commission (IPCOM) Bill, these bills have not yet been passed into law in accordance with the various legislative procedures and so therefore, cannot make any impact on the protection of GIs currently.

The Prospects of Geographical Indication for Nigeria.

Geographical indication has several prospects for Nigeria, hence the need for the nation to fully harness the possibilities and advantages presented by geographical indications, by adopting a more effective system/framework for the protection of geographical indications at the domestic level.

One of the gains nigeria would derive from having an efficient legal protection for GIs, is that it would give the country the advantage of easy and faster access to protection of its GI products Internationally.

Secondly, GI would help protect and promote the names of the geographic areas where these goods originated from, their traditional and cultural knowledge, and also create wealth and employment for the rural people involved in the production, attract development to the rural areas engaged in production, while also reducing rural-urban migration.

Thirdly, an efficient GI system would ensure adequate protection of goods and products originating from a territory within a state, thereby curtail the possibility of free-riding and misrepresentation of its goods and products abroad, as it would aid in quick detection of fake and misleading labels on substandard and non-original products, aimed at misleading consumers.

Fourthly, An efficient GI protection, would aid in promoting and controlling production of the protected goods, quality control, protection of reputation, and by extension, international protection. It will also enable the administrators of the geographical indications to set a prescribed rules and standards to be met by every producer or manufacturer, for the goods or products to enjoy certification.

Fifthly, GI increases the value of a product, and makes the price double or even more, the value of similar goods or products not protected under GI, thereby eliminate price fluctuations, as consumers would be more inclined to purchase GI goods than non-GI goods, irrespective of the price difference, consumers see GI goods as authentic regional products. In other words, GI “protects local value at global level”.

Sixthly, Geographical Indication aids the differentiation of goods, promotes originality and authenticity, while also giving exclusive rights over the products to its original producers, this would also make it easier for the product’s origin to be easily traceable, and manufacturer’s or producers’ liabilities easily Identified.

Seventhly, it also provides avenue for the promotion, preservation and exchange of cultural, and traditional values at the universal level, through market interactions and product exchange.

It also leads to improved access to the global market for made in Nigeria goods and products, and by extension, increased sales for the goods and products so protected even at a higher value.

It would also lead to increased competitiveness for our goods and products at the global market, our ability to adopt an efficient GI protection framework for our local products would accord them the distinctiveness to be able to stand out and compete favorably with other goods and products in the global market.

An efficient GI protection would equally, in the long run, improve our tourism sector, by attracting tourists from across the world to our various rural areas where these goods are produced, hence, placing Nigeria in the world map as a tourist destination. Nigeria with its rich cultural, human and natural resources, stand to gain a lot from GIs.

It would also bring about empowerment to the Local Institutions, thereby strengthening the local governance.

It would also curtail the risk of the geographical indications becoming a generic term.

It also has the prospect of increasing Nigeria’s gross domestic products (GDPs).

In the words of Ms. Chinasa Uwanna, “having a framework that adequately protects GIs in Nigeria, gives us a better chance of generating more income from different sectors of the economy, including but not limited to agriculture, hospitality and tourism. In addition, it will have ripple effect of creating employment opportunities, preserving traditional knowledge and fostering regional and international cooperation”.

Also, according to Michael Peter (1998), ” The enduring competitive advantages in a global economy lie increasingly in local things – knowledge, relationships, motivation – that distant rivals can not match.”

Conclusions.

The need for Nigeria to adopt an effective system for the protection of its GIs can not be overemphasized, this is more so as the country makes efforts to diversify its Economy away from dependence on oil. It is no more news that oil which is our major export would soon lose relevance, due to the impending takeover of non-petrol cars in the nearest future, as a result of efforts across the globe to eliminate carbon emissions, while promoting clean energy to forestall global warming and climate change occasioned by excess release of emissions into the air. Nigeria, as the giant of Africa, rich in agricultural products, traditional foods and handicrafts, have a lot to benefit from GIs, these we have discussed in this article, and it is the writer’s hope that a more effective legal and policy regime would be adopted for the protection of our GI products, as this would promote our goods and products with its qualities and reputations in the global market, while eliminating free riding/counterfeiting. There are numerous GI products in Nigeria, over 10,000 of them, some of these products are being exported to neighboring countries by taking advantage of our porous land borders, and when these goods and products find their way into these countries, they’re in most cases misrepresented to appear as goods and products originating from those countries, the implication is that these countries whose GI system is more effective, end up reaping where they did not sow by getting all the benefits, which ordinarily would have accrued to Nigeria, had Nigeria operated an efficient GI system. An effective GI system would lead to creation of Jobs, development, wealth, quality governance at the rural areas, reduce emigrations from the rural areas, promote our cultural and traditional know-hows, and above all, secure a place for Nigeria in the global market.

Recommendations.

The following key recommendations were made by panelists who spoke at a webinar on the Importance of Geographical Indications to the Sustainable Development Goals in Nigeria:

The trademarks Act cannot be relied upon on its own to protect GIs in Nigeria; therefore a sui generis system must be instituted to work alongside the Trademarks Act in the protection of GIs;

The institutionalisation of adequate legislative and institutional reform that strongly backs the proposed GIs system must be put in place with strict but reasonable terms and conditions;

To constitute relevant stakeholders (private and public) for as a technical working group to design workable framework;

Inter-governmental as well as inter-agency collaboration must be maintained and appropriately managed to achieve implementation of adopted policies;

A Nigeria GI template: Clear and specific terms and definition must be outlined to effectively capture what products qualify as GIs and what does not. Most importantly it must be a flexible tool that takes into account the multidimensional layer of identifying potential GI product;

Also, a comprehensive mapping of potential GIs products must be carried out and catalogue in a database; and

Finally, advocacy needs to begin immediately; it does not have to wait until the implementation stage. The advocacy should focus on education, institution reforms and awareness on the importance, benefits and processes for protection of national.

In addition, two more recommendations have been advanced:

Establishment of an office to cater for matters bordering on GIs, as the Trade Marks, Patents and Designs Registry is already overburdened with pending trademarks, patents and design matters.

Nigeria should enter into bilateral trade agreements with other trading partners targeted at enhancing the value of GIs (like the China-EU agreement on geographical indications entered on July 20, 2020), to strengthen Nigeria’s GIs protections regime once introduced.

References.

*DICKENSON, PEATMAN & FOGARTY, “Geographical Indications in Branding Strategies – Legal Issues and Examples in the U.S”, pdf.

* World Intellectual Property Organization, “Geographical Indications”, available at >https://www.wipo.int/geo_indications/en/.

* Panel discussion on, “THE IMPORTANCE OF GEOGRAPHICAL INDICATIONS TO THE SUSTAINABLE DEVELOPMENT OF NIGERIA”, a webinar Organised by The World Intellectual Property Organization (WIPO) Nigeria Office, in collaboration with the Africa International Trade & Commerce Research (AITCR), available WIPO official website, (updated on August 13, 2020),wipo_webinar_wno_2020_4_gi.pdf.

* Daniele Giovannuci & 4Ors, “GUIDE TO GEOGRAPHICAL INDICATIONS – LINKING PRODUCTS AND THEIR ORIGINS”, International Trade centre, Geneva, 2009, >geographical_indications.pdf.

*World Intellectual Property Organization, “Geographical indications”, at wipo-pub-941_2017_chapter6.pdf.

* María Paola Rizo, Nathalie Frigant and Violeta Ghetu, “Geographical Indications An Introduction”, World Intellectual Property Organization, wipo_pub_952.pdf.

* Solomon Gwom, “PROTECTION OF GEOGRAPHICAL INDICATIONS IN NIGERIA: A LEGAL AND POLICY DEFICIT”, WIPO-WTO Colloquium papers, 2017, chapter_7_2017_e.

* Ruth L. Okediji, “The International Intellectual Property Roots of Geographical Indications”, an Agricultural law research article, Originally published in CHICAGO-KENT LAW REVIEW82 CHI.-KENT L. REV. 1329 (2007), Available at>www.NationalAgLawCenter.org.

* William van Caenegem, Jen Cleary, “The importance of place: Geographical Indications as a tool for local and regional development”, Available at>”https://www.springerprofessional.de/en/the-importance-of-place-geographical-indications-as-a-tool-for-l/12178604.

* “Geographical Indication: Overview, Importance and Benefits”, Available at>https://www.kashishworld.com/blog/geographical-indication-overview-importance-and-benefits/.

* Unknown author, Article 22: Protection of Geographical Indications, Trade Related Aspect of Intellectual Property (TRIPS), available at>https://nlipw.com/agreement-trade-related-aspects-intellectual-property-rights/article-22-protection-of-geographical-indications/.

* Oreoluwa Adebayo (S.P.A. Ajibade & Co Associate Intern.), “Nigeria Trademark: The Rationale for Protecting Geographical Indications in Nigeria”, (17th November 2020), available at https://www.mondaq.com/nigeria/trademark/1006534/the-rationale-for-protecting-geographical-indications-in-nigeria.

* Unknown author, “On Geographical Indications in Nigeria: An Interview with Sand Mba Kalu”, (17th February 2020), available at>https://www.floraip.com/2020/02/17/on-geographical-indications-in-nigeria-an-interview-with-sand-mba-kalu/.

* Unknown author, “What are Geographical Indications”, available at>https://connectamericas.com/content/what-are-geographical-indications.

* Nigeria Trademark Act, 1965.

About the Writer.

Ekenobi ThankGod Chinonso, is a second year Student, in the faculty of Law, Ahmadu Bello University, Zaria, Kaduna State, Nigeria.

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