How to protect premium brands based on origin

Today’s article is inspired by Greek yoghurt! At the time of writing this, I was enjoying a glass of Greek yoghurt but wondered to myself if it was really authentic Greek yoghurt, or a mere marketing gimmick. Greek yoghurt is a type that originates from Greece and is so distinguished by its process of manufacturing and health benefits.

Greece has previously sought to protect its famous Greek yoghurt through the use of geographical indications, a type of intellectual property rights. The benefit of seeking that protection would enable the consumer distinguish between what is authentic and what is not. The argument by Greece is that there are two types of Greek yoghurt in the market.

There is the Greek style yoghurt and authentic Greek yoghurt. Greek style yoghurt applies the process of manufacturing Greek yoghurt, while authentic Greek yoghurt is so called due to its origins and processing. The rationale behind Greece’s application for geographical indications was therefore to protect the repute of the authentic Greek yoghurt from misuse and abuse.

Geographical indications are signs used on products that are distinguished by their place of origin, processes and reputation. The key feature of a geographical indication is that it is originated from a specific place. Some examples that would qualify for the protection include Swiss watches, Swiss chocolate, Kenyan coffee and Basmati rice.

The above products are luxury products and are sold at a premium due to their reputation. There is therefore need to provide a mechanism through which authentic products can be screened by the consumer. A geographical indication gives the owner the right to use the mark, right of labelling and gives protection against infringers.

Kenya currently has no law on geographical indications, instead recognition of certification marks is provided for under the Trademarks Act. A certification mark is conferred on a good or service that has a specific quality including geographical origins. An application can be lodged by an entity (for example an association) and the applicant would undertake to verify that all products that bear the certification mark have the unique qualities

While Kenya has no geographical indications law yet, it is worthwhile to consider protection of some products under certification marks.One of the products that ought to be protected is Kenyan tea. Kenyan tea is highly reputed world over and is often priced at a premium. Its good reputation arises from its distinct taste, quality and character. It has been described as having a “full bodied flavour and taste.” I wonder if any steps have been taken to seek protection.

The benefits of protection (whether as geographical indications or certification marks) include protecting the goodwill of the product in the market. Certification marks and geographical indications are also good for branding and marketing.

In a case Civil Appeal 338 of 2013, Agricultural And Processed Food Products & ano. versus Krish Commodities Limited, the appellant opposed the award of a trademark to the respondent as he sought protection over the word “basmati.

The court in dismissing the appeal found that the appellant did not own the mark, neither did India or Pakistan (where basmati originates from) object.