The Legal Implications Of Medicinal Marijuana As A Geographical Indication For Jamaica 02/03/2015 by Intellectual Property Watch 1 Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) The views expressed in this article are solely those of the authors and are not associated with Intellectual Property Watch. IP-Watch expressly disclaims and refuses any responsibility or liability for the content, style or form of any posts made to this forum, which remain solely the responsibility of their authors. By Marsha Cadogan, Bsc. LL.B, LL.M, PhD (candidate). The EU-Cariforum Economic Partnership Agreement between Caricom countries and the European Union, facilitated interest in, and led to the subsequent enactment of geographical indication (GI) legislation in most Caricom countries, including Jamaica. Although the World Trade Organization TRIPS agreement makes reference to, and includes provision on geographical indications (hereafter GIs), such enhanced protection is only available for wine and spirits GIs. [TRIPS is the WTO Agreement on Trade-Related Intellectual Property Rights] Practically, therefore, although there are ongoing negotiations to revise the Lisbon Agreement for the international recognition of GIs, there is currently no uniform reciprocal legal recognition for non-wine and spirit GIs in international jurisdictions. Jamaica’s Cannabis (hereafter marijuana), is identified by its government as one of the country’s products which is domestically GI registrable. There is also a marked interest by sectors of Jamaican farming and business development entrepreneurs in the trade of medicinal marijuana to international jurisdictions. Although trade in medicinal marijuana is a topical and contentious issue in Jamaica, its tradability has not been extensively analysed from an intellectual property rights perspective. This note discusses two issues: (a) the domestic legal implications of the GI protection of marijuana, and (b) have Jamaica major consumer markets been identified, and if so, how is marijuana legally recognized in these international jurisdictions? These are salient questions which need to be addressed in the registration, structuring and governance of GIs. The arguments in this note are critical points which are necessary in strategizing GIs generally, as commercial IP assets for Caribbean communities. My arguments do not pertain to, neither are they concerned with, the legality and usage of marijuana in Jamaica or elsewhere. A geographical indication is a product which is protected as an intellectual property, based on the natural and/or human capital characteristics of the product, which must be directly related to its geographic or territorial origin. The characteristics of the product must be such that they distinctly differentiate the product from that of its competitors; all distinguishing features must be based on its geographic origin. Jamaica, and a number of Caricom countries have enacted geographical indication legislation, but have yet to register products under the legislation. A central tenet of a geographical indication system is its focus on product differentiation which is based on the unique historical and cultural attributes associated with the territory and the product. Product differentiation enables the GI good to be distinguishable from other consumer products based on its connection with its origin. Jamaica’s GI legislation defines a registrable GI product as one in which “a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin”. Furthermore, the good must originate in the specific territory from which such essential attributes are based. The structure and governance of any particular GI scheme are essential factors in the successful operation of GIs. Registration of a product without strategic commercializing initiatives, and a broad-based interest in developing the socio-economic interest of key stakeholders, will likely not produce beneficial results. The domestic implications of the GI registration of marijuana are varied, but this note focuses on the legal impact of such a registration. The structure and governance of GIs bring to fore the relevant, and potentially problematic point that IP rights’ ownership may either re-inforce a particular status quo in the global IP order, or effect reformist changes in its applicability to the “local”. Although other issues can be identified, I focus on two relevant issues in the subsequent paragraphs. Firstly, who should own and administer the GI brand, a transparent and effective producer group, or the government? Pursuant to Jamaica’s GI legislation, a geographical indication can be registered and owned either by a producer group or the state. This is in line with current international practices concerning GI ownership. There is no conformity in the structure and legal ownership of GIs in international jurisdictions. As an instructive example, India’s GI legislation enables active involvement in the registration and defence of GIs, compared to France’s GI regulation, which allows greater involvement by private groups. In addition to determining GI ownership, a scheme must be organized to administer and manage the legitimate commercialization of the product in chosen regional and international jurisdictions. This is not necessarily an easily achievable tasks as it involves: (i) the identification of key stakeholders in cultivation, production, distribution and marketing of the marijuana, (ii) developing workable and efficient rules and policies for implementation amongst all key stakeholders, (iii) choosing a representative committee from the group without or with minimal influence of partisan politics and/or classism, (iv) effective cooperation amongst all key stakeholders, and (v) Strategic identification of jurisdictions which have enacted legal uses for the product and how best to access these jurisdictions. As indicated in some jurisdictions in Mexico and India, lack of transparency in GI group membership, too substantial an involvement by elite groups and/or multinational enterprises, and limited knowledge on best practices in exploiting the GI product, often lead to an ineffective GI scheme. My reference to “ineffective” pertains to the inability of the GI scheme to procure socio-economic benefits to the producer group, and key stakeholders, as the necessary combination of legal, human and financial resources are either not present, or are inefficiently used in the development of the program. As such, the commercialization of Jamaica’s marijuana is not necessarily a lucrative GI venture without the use of feasible and transparent strategies. In instances of a concentrated control of the producer group by elite representatives, including multinational or large-scale international companies, profit for small-scale farmers from the commercialization of medicinal marijuana may not be forthcoming. Essentially, registration of a GI product accomplishes the following. The product is domestically protected against infringement in local, regional and international markets and jurisdictions which reciprocally recognize GIs as a separate form of intellectual property right. Secondly, registration excludes, (or aims to exclude) non-registered proprietors and un-authorized stakeholders from cultivating, producing and distributing the product. Exclusivity is a coveted characteristic and one of the main acquired advantages of an intellectual property right good. The principle of proprietorship rights in IP narrative demarcates the ownership and usage of IP resources. The important point herein is that although the principle of exclusivity in IP means that right holders of GIs are finite in number, a significant number of stakeholders are implicated in the ownership and exploitation of such rights. GI registration can therefore be explained as an enabling measure which legitimates the characteristics, and commercial existence of the product. These are all implications which are applicable to Jamaica’s marijuana, if registered as a GI. However, there are no inherent asset-oriented benefits from the registration of GIs without constructive engagements with key local and international actors, and strategic exploitation of the product itself. The second point in this note critically discusses the international state of GI laws, as this directly implicates the ability of Jamaica’s products in sustaining its legal presence, and rights gain therefrom, in international jurisdictions. It also limits the availability of effective infringement measures in international consumer markets. There is no uniformity in GI legislation in international jurisdictions. Instructive examples of this are the jurisdictions of Canada, the United States and Japan, which recognize GIs as certification or collective marks under the jurisdiction of Trademark rights. Article 22.1 of TRIPS provides basic protection for GIs generally, and only in cases where the public is misled, and in instances of unfair competition. The United States, Canada and Japan comply with their obligation to recognize Article 22.1 through their respective trademark and unfair competition legislation. In contrast, GIs are legally recognized and accorded enhanced protected in the European Union, Mexico, Switzerland, and India. As with other forms of intellectual property rights, a fundamental issue concerns the ability of the GI product to be successfully commercially exploited. In terms of jurisdiction, therefore, choice of consumer markets is important. Jurisdictions which have not enacted GI legislation are unable to recognize Jamaican GIs as a GI protected product in its territory. As such, infringement issues in these jurisdictions cannot be addressed as GI infringements. In these jurisdictions, in order to obtain some form of IP protection for the product, trademark protection is the next best alternative. However, an additional hurdle is satisfying the trademark registrability requirements of each chosen jurisdiction. There are international juridical differences in trademark rules governing the use of certain geographic names on products, inclusive of the legal use of country names on products. Registration may also be invalidated or refused if the name of the product conflicts with an existing or similarly registered name which is in existence. Another issue is the international non-uniformity in a jurisdiction’s approach to conflicts between GIs and trademarks, which may prevent the registration of GIs in non-domestic markets. These are issues which must be critically analyzed, and evaluated in addressing the reciprocal recognition of GI rights in international and regional jurisdictions, and in seeking feasible trademark alternatives as a means of protection. Conclusion The tradability of Jamaica’s marijuana from an intellectual property rights perspective requires a focus on legal and non-legal considerations. Geographical indication registration is capable of protecting marijuana against domestic infringement; that is an axiom. However, the product itself is controversial, and so, can only be traded in consumer markets which legally recognize legitimate uses for marijuana. Importantly, there is no guaranteed reciprocity in GI recognition in international jurisdictions. This is one issue, amongst others, which the draft Lisbon Agreement negotiations seeks to redress, by establishing a system for the international enhanced legal protection of GIs generally. Although there are ongoing debates to amend its provisions to include enhanced protection for non-wine and spirit GIs, these debates are still negotiations, and have not been finalized. Among the integral non-legal considerations are the composition of local producer groups, and the ability of the producer group to unequivocally represent the interest of all of its members. The tendency for classism and/or political affiliations to influence the group’s policies and the administration of the GI scheme, are genuine concerns which must be addressed. Absent effective governance, and legal expertise to proactively address intellectual property issues in international consumer markets, it is unlikely that the GI registration of medicinal marijuana will be substantially beneficial to its rights holders. Marsha Cadogan is finalizing a doctorate in intellectual property rights law at Osgoode Hall Law School, York University. Her research focus is on the intersections between geographical indications, international relations and development in the Caribbean. Her research interests are in the areas of international trademark law, copyright laws and geographical indications, with specific focus on their usage, relevance and implications in developing countries. Marsha is a lawyer and a member of the Law Society of Upper Canada.  Article 23, Additional Protection for Wine and Spirit Geographical Indications, Agreement on Trade-Related Aspects of Intellectual Property Rights.  The Protection of Geographical Indications Act, 2004, Act 5 of 2004, Jamaica.  Delphine Marie Viven, “The Role of the State in the Protection of Geographical Indications: From Disengagement in France to Significant Involvement in India” (2010) 13 J’l of W. Int’ll Property 121.  See Kasturi Das, “Prospects and Challenges of Geographical Indications in India” (2010) 13 Journal of World Intellectual Property 148. Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related "The Legal Implications Of Medicinal Marijuana As A Geographical Indication For Jamaica" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.