Regardless of the challenges, there is optimism among intellectual property practitioners that Parliament will entertain the enactment of a geographical indication legal framework, which stalled a decade or so ago.
A geographic indication is a symbol showing region of source of goods, for example, a town, region, or country that oozes certain quality because of either/or a combination of geographical, environmental, natural and human factors.
On December 23, the MPs passed the Tea Act of 2020 paving the way for a realignment in the sector. However, it has not been a smooth sail as Kenya Tea Growers Association moved to court seeking a declaration that some sections of the Act are unconstitutional. Justice Anthony Mrima issued temporary orders awaiting the determination of the case.
Regardless of the challenges, there is optimism among intellectual property practitioners that Parliament will entertain the enactment of a geographical indication legal framework, which stalled a decade or so ago. A geographic indication is a symbol showing region of source of goods, for example, a town, region, or country that oozes certain quality because of either/or a combination of geographical, environmental, natural and human factors.
Compared to other forms of intellectual property, they are relatively unknown. They are a creation of the World Trade Organisation’s Agreement on Trade-Related Aspects of Intellectual Property Rights.
Kenya has noteworthy probable geographical indication products — the Baringo goats, reputed to be naturally salty, Ukambani mangoes said to be sweeter than others grown in other regions, Kenyan tea and coffee, Wamunyu Handicrafts of Machakos, Echuchuka unique aloe vera of Turkana, Maasai various cultural products and even Swahili language. Such products are an opportunity awaiting exploitation. They have unique physical and cultural aspects that can be translated into product differentiation.
However, a lack of a legal framework denies Kenya the opportunity to turn above geographical indications potential into kinetic. When exploited such geographical indicators could pave the way to higher and more stable export earnings. Nevertheless, the enactment of the Tea Act and operationalisation of The Crops (Tea Industry) Regulations 2020, which borrow heavily from India’s Tea Board (Darjeeling) is a precursor to unlocking this unique form of intellectual and cultural property.
Geographical indications can be used to improve Kenya’s commercial and economic interests at the same time nurturing local principles in environmental stewardship, culture and tradition since they tend to have standards for quality and originality. Their distinction from other commodities can offer a valuable competitive advantage that is difficult to erode.
Conversely, geographical indications are not easy to institute. Their success is usually slow and measured in many years, which involve persistent application and continuous commitment. Such commitments require considerable costs, organisational, institutional structures, thorough marketing and zealous legal enforcement.
To safeguard this, it is essential to have a legal framework that addresses organisational and institutional structures..
In a nutshell, the country must build upon the Tea Act and create a specific geographical indication regime as opposed to the certification or collective trademarks. This is because a geographical indicator is protected for all to use and is easier to manage for the long-term benefit of producers as a whole.
We can aspire to get to a level where the Tea Board of Kenya is the owner of all intellectual property rights associated with the local tea.
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