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Commentary: Should've, could've but didn't: Failure to protect your intellectual property
Published on December 18, 2013 Email To Friend    Print Version

By Shalisha Samuel

Demerara sugar of Guyana and the steelpan of Trinidad and Tobago are great Caribbean examples of the importance of prompt intellectual property (IP) protection.

Demerara Sugar (Guyana)

shalisha_samuel.jpg
Shalisha Samuel is the songwriter-owner of Brown Mint Productions Inc. After completing a BSc. in Political Science and an MSc. in International Trade Policy, she worked at the World Intellectual Property Organization (WIPO) in Geneva Switzerland. Shalisha hosts seminars for young entrepreneurs on how to incorporate Intellectual Property as a business strategy
Two well-known cases touch upon the “Demerara” name, although neither case arose as a direct result of IP infringement. In Anderson v Britcher (U.K, 1913)i sugar from Mauritius was sold as Demerara sugar originating from Demerara, Guyana. The buyer argued it was not genuine sugar from Demerara; however, the court ruled that “Demerara” is a generic term used to describe brown, crystalised sugar made from sugar cane and bears no indication to the region in Guyana.

In the second case of Bedessee Imports Ltd v Guyana Sugar Corporation Inc. (Canada, 2010)ii , Bedessee Imports Ltd, packaged and distributed sugar made in Mauritius under the brand “Demerara Gold”, a Bedessee’s registered trademark “since at least 1984”iii , while another sugar was packaged with the map of Guyana. When the Guyana Sugar Corporation Inc. (Guysuco) sought to register the trademark “Demerera Gold” in Canada, Bedessee filed an opposition and then submitted an application for registration of the same name, which was later opposed by the government of Guyana. Guysuco withdrew from the application process. Following this, the government of Guyana (Minister of Agriculture, et al) then made what Bedessee considered to be defamatory statements. The case therefore is one relating to defamation and diplomatic immunity in which the court, including the appellate court, dismissed Guyana’s claim to immunity thereby allowing Bedessee to file a suit against the minister.

If steps had been taken years ago by producers in Guyana and the government for a geographical indication (GI), the more recent 2010 Canadian case may have resulted differently. There still exists hope for Guysuco, as neither of the above cases dealt directly with “Demerara” as a protected word/brand. Therefore, attempts can be made for “Demerara” to be protected as a GI, collective mark, or even a trademark by altering the name; “Demerara of Guyana”, “Guyanese Demerara”, “Demerara Sugar” or “Guyana’s Demerara Sugar” are some examples. Furthermore, Camembert de Normandie was said to be a generic term according to a French court in 1926, but is now protected in France and the EU.iv

Steelpan (Trinidad and Tobago)

A patent application was filed by, and granted in 2001 to Hydro Steel LLC for using the hydroform press to mass-produce steelpans in the United States. The patent on the process of making the steelpan was later challenged by the government of Trinidad and Tobago and revoked by the United States Patent Trademarks Office (USPTO), a success for Trinidad and Tobago. The process was previously developed by a research team at the University of the West Indies where, accordingly, the researchers claimed that an application for a patent was not submitted due to a lack of finances and concern that the patent process was too complex.v Trinidadian steelpan producers can therefore continue with innovations of the steelpan and quite possibly, someday, be granted patents on these improvements.

Black Belly Sheep (Barbados)

While the commercial use of the black belly sheep's name has not been subject to legal proceedings, protecting and promoting the name in trade would be an ideal government strategy for Barbadian businesses. Some groups have already laid claim to the black belly sheep, therefore, challenges to any form of registration / protection should not be surprising. Needless to say, IP protection of the black belly sheep would undoubtedly position entrepreneurs in the manufacturing and even service sectors to differentiate their offerings in the global market.

i Anderson v. Britcher 30 T. L. R. 78 (1913), 34 Cox’s Criminal Law Cases 60
ii Bedesse Imports Ltd v. Guyana Sugar Corporation Inc., 2010 ONSC 3388
iii Bedessee Imports Ltd. v. Guyana Sugar Corporation, Inc., 2010 ONSC 3388. para. 17.
iv Gangjee, Dev Saif, Demerara Sugar: A Bitter Pill to Swallow? (December 1, 2011). Intellectual Property Journal, Vol. 24, p. 1, 2011
v “Intellectual property issues strike at the heart of the steelpan”. July 31, 2011. Dr. Kris Rampersad, The Guardian (Trinidad and Tobago). Accessed October 11, 2012.

Originally published in Services Scoop
 
Reads: 5664





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