BIDC/WIPO Seminar

 

Across the world, the Caribbean is renowned for its unique flavors in music, arts, literature and entertainment; its food, natural beauty, excellence in sports and its enviable fun and sun lifestyle.

Due to the power of the Caribbean brand there is an increasing trend by some foreign entities and individuals with no genuine link to the region, to obtain registered trademarks around the world, comprising either a Caribbean country's name or derivatives thereof, or of names of famous people, foods and locations of the Caribbean, in order to capitalise on the growing value of the brand.

A casual internet search for Barbados products has uncovered for example: Barbados creole pepper sauce, several lines of Barbados tagged furniture, Live Barbados trainers by Lacoste, the Barbados slipper (flip flop) by Hi-Tec, a US$335 sandal by designer Stuart Weitzman, Barbados branded clothing, jewellery and sunglasses, 119 souvenir items, a Barbados vanity/cosmetic bag by popular clothing label Roxy, a US$249 Dreaming of Barbados mini dress.

None of them produced in Barbados nor by Barbadians.

 

Need for Competitive Strategies

For a long time we have been hearing that there is an urgent need to identify competitive strategies that would differentiate Caribbean products and services. Yet little has been done to advance these.

Despite being known for its distinctive creativity, this creativity has been applied to globally competitive output in only very few fields. And according to Malcolm Spence, senior Coordinator for IP and Science and Technology issues at the Office of Trade Negotiation, "those niches where this has occurred have rarely, if ever, expanded beyond artisanal or small-scale production for local or regional markets".

This limitation in global expansion demonstrates the lack of relevant skill to output and the failure to capitalize on our existing wealth of knowledge. Ideas, and some of them absolutely brilliant, are dismissed simply as a result of the belief among us that the next big thing cannot be birthed out of a single home-grown solution, but will rather come out of North America, Europe or Asia.

Barbadian scientist, the late Dr. Colin Hudson is perhaps our most celebrated figure in the application of creativity to competitive output. When Dr. Hudson saw the need for mechanization in the sugar industry, he shifted his focus from agronomy to technology and developed a harvester for sugar cane. He formed the company Carib Agro-Industries Limited in 1979 and invented harvesters for sugar, yam and cassava, a cane reaping aid, a loader for small farms, yam and sweet potato digging equipment, cane, yam and cassava planters and precision fertilizers. He and his colleagues obtained 20 patents in total, and these machines came to be used around the world.

Given advancements in education, the increasing availability of advanced technologies and changing lifestyle demands, along with the high level of education and Knowledge Economy Index, one might reasonably assume that an increasing number of new, patented developments would have been rolling from Barbados over the years. But regrettably, it seems we have strayed too far from the application of ingenuity out of necessity and by extension we have fallen short in innovation.

The World Bank's Knowledge for Development ratings (K4D) suggest that "The application of knowledge – as manifested in areas such as entrepreneurship and innovation, research and development, software and design, and in people's education and skills levels – is now recognized to be one of the key sources of growth in the global economy. Countries such as Korea, Malaysia, Finland, China and Chile illustrate the rapid progress that can be made over relatively short periods of time by pursuing coherent strategic approaches to building their country's capabilities to create, access, and use knowledge."

However, in Barbados and much of the Caribbean, there appears to be no sense of urgency to drive new product development, coupled conversely with a growing dependency on more developed territories for products we can import or mimic. It is not a scenario conducive to building a competitive nation.

Information from the WIPO statistics database suggests that over the years 2000 and 2011, local patent applications under the Barbados designation totalled a mere 6, as compared to non-resident applications which totalled in the thousands, mainly in the areas of Medical and computer technologies and pharmaceuticals. There was also a growing number of applications within the special machines, furniture and games segments.

On the other hand, Trade mark applications by resident count, ranged from 132 in a single year to a peak of 339 in another, while applications abroad ranged from 23 in one year to a peak of 1944 in another.

Industrial design entries from resident Barbados applicants ranged from 132 to 339 while non-resident applications ranged from 3 to a high of 275. Since International Business companies registered in Barbados may be considered as resident in Barbados, closer analysis would be required to determine how many of these applications are in fact from Barbadians.

The data suggests that with the exception of applications for industrial design protection, applications for Intellectual Property (IP) protection in Barbados from sources abroad, far exceed those applications from residents.

It therefore raises the question of why?

 

Why not here? Why not us? Why not you?

Small open economies such as Barbados are being urged not to see intellectual property protection as an end in itself, but as a means for meeting the goal of fostering competitiveness and innovation. This is in fact one of the tenets of the Cariforum EU EPA, which includes comprehensive provisions on IP rights protection.

And, WIPO's work in the area of Global Challenges aims to emphasize the positive relationship between innovation and intellectual property (IP), and how IP can best be used for economic and social development.

There is overwhelming evidence to suggest there is value in a Barbados/Caribbean brand, underscored clearly by those foreign producers peddling regional brands that are not authentic. We certainly have highly educated human resources, skilled artisans and a demonstrated ability to produce high quality goods. So why aren't we doing more to propel our social and economic advancement through the creation and management of intellectual property?

 

IP Challenges

Admittedly, Caribbean countries are committed to working to ensure that their IP regimes encourage innovation and are internationally competitive. They, however, continue to be challenged in achieving real results.

Attorney-at-Law, Abiola Inniss, writing on Caribbean Intellectual Property Law, observed that the recognition that the intellectual property challenges of the Caribbean are unique and require special and urgent treatment has obtained only in select circles of interest. And even then, she said, it is only as purely academic discourse or as discussion of frustrated artists and producers who find it impossible to have their works protected throughout the Caribbean region and must settle for pockets of protection provided by the legislation of individual countries.

The situation is buoyed by attitudes of end users in the region towards copyright, trademark and patent issues. These range from the sympathetic to the uninterested and have been proven to be directly related to government policies and practices. Each country in the region has some form of IP protection at law and the level of enforcement of these laws varies in accordance with the government's policy and interests; as reflected in the resources that are dedicated to enforcement.

There is also the issue that the legislation in some countries is very outdated.

And then there are the concerns about international protection. With regard to patents, copyrights and trade secrets, any IP protection granted tends to be limited to the country in which they are registered. Depending on the potential of your idea internationally, along with the collapsing geographical boundaries of technology, it might be prudent to consider the merits of protecting your ideas and works in other countries as well. But admittedly, registration processes can be costly and protracted, so having to do it more than once, especially for a startup or small business, can be a severe strain on resources.

Under the Madrid System for the International Registration of Marks, most commonly referred to as the Madrid Protocol 'a trademark owner has the possibility to have his trademark protected in several countries by simply filing one application directly with his own national or regional trademark office'. For countries that have not acceded to this arrangement, their trademark owners must register their trademarks in each individual jurisdiction in which they would like protection.

In the Caribbean, only one country, Antigua and Barbuda, is a signatory to the Madrid system for International Registration of Marks. Under European Union Partnership Agreement, however all Cariforum countries must sign by 2014.

But while the Madrid Protocol is beneficial as a simple vehicle to obtain and maintain registration of trademarks in multiple jurisdictions through a single trademark office, secure business rights through trademarks in key export markets and garner potential significant savings, it also presents a dilemma.

By reducing barriers of language, cost and inconvenience, the Madrid Protocol has already revolutionized global trademark protection. It must be noted, however, that a rise in international trademarks may create a corresponding increase in the risk of potential conflicts and registration refusals.

In Jamaica for example, those businesses, which have to fork out significant sums to register their products and services internationally, are pushing for the country's accession to the treaty that they say would simplify and reduce the costs associated with the brand protection. But at the same time, the lawyers have said that if Jamaica accedes to the Protocol, those with marks that have no genuine links to that country stand to gain easy entry to Jamaica, a situation which opens Brand Jamaica to potential abuse by foreign entities. It's somewhat a catch 22 in this regard.

 

Capitalising on Our Potential

Barbados, and the Caribbean as a whole, boasts significant potential as exporters of distinctive goods and services. Harnessing that potential is however dependent on the strength of the legal, administrative, fiscal and educational framework put in place with respect to intellectual property.

Where regulation is concerned, the WIPO rules are useful guidelines and since most Caribbean countries are signatories to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement because of the World Trade Organization requirements, this provides a good foundation.

Within the context of training and education, there is certainly scope for working with SMEs in encouraging them to embrace design as part of their competitive strategy. Efforts must also be made to increase awareness of how IP rights can be used competitively and to encourage the pursuit of differentiation to enhance global competitiveness. The EU/Cariforum EPA speaks to strengthening the regional capacity for dealing with IP rights issues in the Cariforum States. In this respect, the EU has committed to providing significant technical assistance and capacity building to Cariforum countries, a resource we should seek to take full advantage of.

Admittedly, the challenges of knowledge creation, management and protection in the region are multifaceted. The task, however, still remains ours to create a system that will work for us, while being compliant with international standards. Let's put our creative imagination to work to foster an environment where an increasing number of players will be moved to embrace IP as a tool in becoming increasingly innovative.

In addition our governments need to recognise the value of Intellectual property and its potential for economic development by improving our economic incentive regime which is abysmally poor when compared to other countries that have benefitted economically from IP by using it to propel social and economic advancement through the creation and management of intellectual property.

Wednesday, January 23, 2013