Chronicle EditorAleck Ncube
FOR a small and medium-sized enterprise (SME), obtaining consumer recognition and customer loyalty is an arduous task. Regardless of the quality of the goods, gaining access to retail stores, local markets and distribution networks and making products known among consumers requires a significant investment that may exceed the budget of many firms.
Working together, SMEs may develop a joint marketing campaign for their products using collective marks. Collective marks may provide a useful basis for association between various SMEs making similar products helping them to enhance recognition and build a reputation for their products.
SMEs may also seek to register their product as a geographical indication if they consider that there is a clear link between their product and the geographical area where it is manufactured. This would guarantee exclusivity over the use of the geographical indication (e.g. “champagne” or “tequila”) to promote their products.
SMEs may use certification marks to certify that the product meets certain required standards thus giving consumers an indication that their product has been checked by an organisation considered competent to certify the product and has met the necessary requirements. This helps the SMEs to market their products and improve their image among consumers.
Collective marks
Under the intellectual property law of most countries, there are provisions on the protection of collective marks. Collective marks are usually defined as signs, which distinguish the geographical origin, material, mode of manufacture or other common characteristics of goods or services of different enterprises using the collective mark. The owner may be either an association of which those enterprises are members or any other entity, including a public institution or a cooperative.
The owner of the collective mark is responsible for ensuring the compliance with certain standards (usually fixed in the regulations concerning the use of the collective mark) by its members. Thus, the function of the collective mark is to inform the public about certain particular features of the product for which the collective mark is used. Most countries require that an application for a collective mark be accompanied by a copy of the regulations which govern the use of the collective mark.
Collective marks are often used to promote products, which are characteristic of a given region. In such cases, the creation of a collective mark has not only helped to market such products domestically and occasionally internationally, but has also provided a framework for cooperation between local producers.
The creation of the collective mark, in fact, must go hand in hand with the development of certain standards and criteria and a common strategy. In this sense, collective marks may become powerful tools for local development. Particular products may have certain characteristics, which are specific to the producers in a given region, linked to the historical, cultural, social conditions of the area. A collective mark may be used to embody such features and as the basis for the marketing of the said products, thus benefiting all producers.
Associations of SMEs may, therefore, register collective marks in order to jointly market the products of a group of SMEs and enhance product recognition.
Collective marks may be used together with the individual trademark of the producer of a given good. This allows companies to differentiate their own products from those of competitors, while at the same time benefiting from the confidence of the consumers in products or services offered under the collective mark.
Collective marks represent useful instruments for SMEs assisting them to overcome some of the challenges associated with small size and isolation in the market place.
Geographic indication
A geographical indication is a sign used on goods that have a specific geographical origin and possess qualities or a reputation that are due to that place of origin. Most commonly, a geographical indication consists of the name of the place of origin of the goods. Agricultural products typically have qualities that derive from their place of production and are influenced by specific local factors, such as climate and soil. Whether a sign functions as a geographical indication is a matter of national law and consumer perception. Geographical indications may be used for a wide variety of agricultural products, such as, for example, “Champagne” for wine produced in a specific area of France.
Functions of geographical indications
A geographical indication points to a specific place or region of production that determines the characteristic qualities of the product that originates therein. It is important that the product derives its qualities and reputation from that place. Since those qualities depend on the place of production, a specific “link” exists between the products and their original place of production.
Reasons for geographical indications protection
Geographical indications are understood by consumers to denote the origin and the quality of products. Many of them have acquired valuable reputations, which, if not adequately protected, may be misrepresented by dishonest commercial operators.
False use of geographical indications by unauthorised parties is detrimental to consumers and legitimate producers. The former are deceived and led into believing to buy a genuine product with specific qualities and characteristics, while they in fact get a worthless imitation. The latter suffer damage because valuable business is taken away from them and the established reputation for their products is damaged.
How are geographical indications protected?
Geographical indications are protected in accordance with national laws and under a wide range of concepts, such as laws against unfair competition, consumer protection laws, laws for the protection of certification marks or special laws for the protection of geographical indications or appellations of origin. In essence, unauthorised parties may not use geographical indications if such use is likely to mislead the public as to the true origin of the product.
Applicable sanctions range from court injunctions preventing the unauthorised use to the payment of damages and fines or, in serious cases, imprisonment.
How are geographical indications protected at International level?
A number of treaties administered by the World Intellectual Property Organisation (WIPO) provide for the protection of geographical indications, most notably the Paris Convention for the Protection of Industrial Property of 1883, and the Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration. In addition, Articles 22 to 24 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) deal with the international protection of geographical indications within the framework of the World Trade Organisation (WTO).
Certification marks
A number of countries also provide for the protection of certification marks. Certification marks are usually given for compliance with defined standards, but are not confined to any membership. They may be used by anyone who can certify that the products involved meet certain established standards.
Famous certification marks include WOOLMARK which certifies that the goods on which it is used are made of 100 percent wool. In many countries, the main difference between collective marks and certification marks is that the former may only be used by a specific group of enterprises, e.g. members of an association, while certification marks may be used by anybody who complies with the standards defined by the owner of the certification mark.
An important requirement for certification marks is that the entity which applies for registration is considered “competent to certify” the products concerned.
Certification marks may be used together with the individual trademark of the producer of a given good. The label used as a certification mark will be evidence that the company’s products meet the specific standards required for the use of the certification mark.
Aleck Ncube is an Intellectual Property Scholar. He can be contacted on [email protected] or follow me on Twitter: @aleckncube
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