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Geographical Indicator

Geographical Indicator

A Geographical Signs of Production Points or geographical indication is “is an indication that introduces a specific area or region of a particular production, which indicated the type, quality, reputation, or other special characteristics of goods produced in that area or region.” Article 3 of the Law on Geographical Signs of Production Points. Some famous GIs capable of protection in Afghanistan are such as Herat Saffron, Kandahar Pomegranate, Istalif pottery, Balmain potatoes, etc. Indeed, A geographical indication is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. Most commonly, a GI consists of the name of the place of origin of the good, such as “Herat saffron”, “Kandahar Pomegranate”, “Jamaica Blue Mountain” or “Darjeeling”. But non-geographical names, such as “Vinho Verde” (for wine in Portugal), Reblochon (for cheese in France) or “Argan Oil” (for Argan tree oil in Morocco,), or symbols or signs commonly associated with a place, can also constitute a GI Moreover, in order to work as a GI, a sign must identify a product as originating in a given place. In addition, the qualities or the reputation of the product should be essentially due to the place of origin. Since the qualities depend on the geographical place of production, there is a link between the product and its original place of production.

    The importance of GIs:

    Geographical indications are more than just a name or a symbol. They reflect a reputation strongly linked to geographical areas of varying sizes, thus giving them an emotional component.

    • a. (A GI’s reputation is a collective, intangible asset. If not protected, it could be used without restriction and its value diminished and eventually lost.)
    • b. Protecting a GI enables those who have the right to use the indication to take measures against others who use it without permission and benefit from its reputation free of charge (“freerides”). Protecting a GI is also a way to forestall registration of the indication as a trademark by a third party and to limit the risk of the indication becoming a generic term.

    The Geographical Indications’ registration may reach the following outcomes\benefits:

    Geographical indications are more than just a name or a symbol. They reflect a reputation strongly linked to geographical areas of varying sizes, thus giving them an emotional component.

    • a. Protecting the product and producers against frauds, misuses, counterfeiting, etc.….
    • b. Improving the product’s position in the market as well as penetrating new markets (national or international).
    • c. Contributing to create or increase added value for the product / the territory (creating job opportunities, increasing the production, improving the quality of the product, preventing from delocalization of production).
    • d. Giving transparent information to consumers on the quality and origin of the products they purchase.
    • e. Proving better promotion and reputation through a collective promotion.
    • f. Improving the welfare of producers / farmers.
    • g. Improving local economy and rural development.
    • h. Allowing for environmental sustainability and protect biodiversity (for some types of products and under certain conditions)
    • i. Promoting local tourism and sometimes eco-tourism.

    Geographical indications as differentiation tools in marketing strategies: the truth about the origin of the products:

    Consumers pay increasing attention to the geographical origin of products, and care about specific characteristics present in the products they buy. In some cases, the “place of origin” suggests to consumers that the product will have a particular quality or characteristic that they may value. Often, consumers are prepared to pay more for such products. This has favored the development of specific markets for origin-based products. Brand recognition is an essential aspect of marketing. Geographical indications convey information about the origin-bound characteristics of a product. They therefore function as product differentiators on the market by enabling consumers to distinguish between products with geographical origin-based characteristics and others without those characteristics.

    Geographical indications as a factor of rural development:

    In some cases, GIs can contribute to development in rural areas. The entitlement to use a GI generally lies with regional producers, and the added value generated by the GI accrues therefore to all such producers. Because GI products tend to generate a higher price, they contribute to local employment creation, which ultimately may help to prevent rural exodus. In addition, GI products often have important spin-off effects, for example in the areas of tourism and gastronomy or collaboration with luxurious brands. Geographical indications may bring value to a region not only in terms of jobs and higher income, but also by promoting the region as a whole. In this regard, GIs may contribute to the creation of a “regional brand.” A word of caution is, however, needed. The mere fact of developing a GI for a product does not guarantee automatic success or development for the region. For GIs to contribute to development, several conditions must be present in the region and in the way in which the specific GI scheme is designed.

1- For an invention to be patentable it must meet the flowing criteria as laid down in the protection of patents rights act (1258)

  • It must be new
  • It must be involving an invention step
  • It must be capable of industrial application
  • d. )It must not be excluded (

2- According to Article 17 of the Law on the Protection of the Rights of Inventors and Discoverers (1258), the following items cannot be registered as inventions
The following items cannot be registered as inventions:

  • Financial table, methods
  • An invention whose use in Afghan trade poses a threat to public order, Islamic, national and environmental values
  • Methods of diagnosing treatment or surgery to treat humans or animals
  • Plants and animals other than microorganisms and essentially biological process for producing plants and animals

Article 6 of the Law provides an explanation concerning the GSPP/GI application.
6(1) An application for registration of geographical signs of production points based on the provision of this law can be submitted to the Central Business Registry by the Responsible Authority in relation to that indication, or by his/her legal representative. We understand that a “responsible authority” can apply for a GI. So, any kind of these organizations are entitled to apply for a GI in Afghanistan:

  • Association
  • enterprise
  • governmental body
  • industrial unions
  • Chamber of Commerce and Industries of Afghanistan and alike that.

Noting above points, we can say: The GI requires the producers and/or transformers and/or traders, as well as all the other people involved in the process or linked to the value chain (as chambers of Commerce or institutions), to be fully committed as an applicant.

    There are some basic conditions for a product to be GI-eligible:

      • A product: agricultural and animal products, foodstuffs, handicrafts, industrial or natural products or any other goods with specific characteristics and quality due to its place of origin.
      • A product linked with its geographical origin: This link is understood as natural factors, human factors, or the combination of both. Reputation only can also be enough to justify the link.
      • A geographical name or associated to a geographical location.
      • A product with specific characteristics, reputation or quality: some shape, taste, color, quality, etc. that makes it “unique/differentiated from others”.
      • A name or sign that already beneficiates from a reputation linked to the product in question (mostly at local level but it can also be at international level).

    What are the potential obstacles to protecting a geographical indication?

    There are several obstacles, from a legal point of view, that may arise when seeking protection for a GI, including the following:
    Misleading GIs: Pursuing article 12.2 and article 16 of the Law on Geographical Signs of Production Points, the ACBRIP will avoid to register GIs that could be attributed to unreal geographical origin or mislead the public on the related origin of the goods.

    Conflict with a prior mark: A GI may be refused protection in a particular territory if the authority in that territory considers that the GI is identical or similar to a trademark previously applied for, registered or acquired through use, in good faith, and that use of the GI would result in a likelihood of confusion with the trademark.

    Example: in France a trademark for glassware was registered for long time ago “BACCARAT”. This brand is well-known for the glassware, but this name is also the name of the village where this know-how comes from. Some other producers would like to register a GI. However, due to the existence of the prior trademark, its public recognition and the potential risk of public misleading, the GI could not be registered. In addition , in France the name “camembert” became a generic name to describe a type of cheese used everywhere in the world. Hence, in order to protect the famous French camembert produced in Normandy region, the producers had to apply a GI for “Camembert de Normandy” (Camembert of Normandy region).

    Generic character: A GI may be refused protection if the competent authority considers that the sign constitutes the common name for the kind of product or service to which it applies. This obstacle will also be implemented for indications of goods that are, therefore, not or ceased to be protected in their country of origin, or which have fallen into disuse in that country. Example: “Dijon Mustard” was originally a name associated to a type of mustard in France, “Dijon” being a city located in Burgundy province in France. However, as “Dijon Mustard” was not protected by its producers, the geographical name lost its geographical significance as Dijon Mustard became, through use, associated to a type of Mustard which could be produced everywhere in the world, rather than associated to a specific origin. The producers can no longer apply for a GI protection for “Dijon Mustard”. They had to develop a new name “Burgundy Mustard” which was later protected as a GI.

    Homonymous geographical indications: Homonymous GIs are those that are spelled or pronounced alike, but which identify products originating in different places, usually in different countries. In principle, these indications should coexist, but such coexistence may be subject to certain conditions. For example, it may be required that they be used in association with additional information as to the origin of the product in order to prevent consumers from being misled. A GI may be refused protection if, due to the existence of another homonymous indication, its use would be considered potentially misleading to consumers with regard to the product’s true origin.
    Example (not real one): GI Roquefort cheese in France and GI Roquefort cheese in Argentina.

    The indication is the name of a plant variety or animal breed: In certain jurisdictions, protection may be refused to a GI if it conflicts with the name of a plant variety or an animal breed and may, as a result, mislead the consumer as to the true origin of the product.
    Example: In France, there is a cow breed “Blonde d’Aquitaine” translated as Blond of Aquitaine “which means blond-hair cow of Aquitaine Region”. Despite the fact that the name of the breed contains a geographical name “Aquitaine”, this denomination could not be registered as a GI as this denomination is officially registered as an animal breed.

    Other obstacles of GI eligibility:

      • Besides the obstacles explicitly mentioned in the law, the following can also be counted as obstacles:
      • The use of which would be likely to deceive or cause confusion, or, The use of which would be contrary to any law for the time being in force, or Which comprises or contains scandalous or obscene matter, or Which comprise or contains any matter likely to hurt the religious susceptibilities of any class or section of the citizens of Afghanistan, or Which would otherwise be disentitled to protection in a court.

According to Article 4 of this law (1258), an invention that has the following items can be registered.

  • The invention is the exclusive right of the inventor, which includes the fields of production, process, new technology, and patents that can be used for industrial use, Provided that it has been registered in accordance with the provisions of the law (1258).
  • A new time invention is considered to not form a part of an art
  • An inventive step is proved when, according to the state of the art, it is not known to the inventor in art
  • Inventions are acceptable for industrial use when used in accordance with the nature of the appetite in industry, agriculture and services.

The registration of Geographical indications in Afghanistan requires the applicant or its representative to file an application in registry office:

  1. The name of the Responsible Authority or their legal representatives;
  2. The name of the place in which the Responsible Authority is applying for registration;
  3. Name of product
  4. The address of the Responsible Authority’s central office or place of business in Afghanistan, if any; and in case of non-existence of such an office or place of business in Afghanistan, the name and address of the Responsible Authority’s legal representative in Afghanistan;
  5. The indication for which registration as a geographical signs of production points is being sought;
  6. The goods to which the geographical signs of production points applies;
  7. The boundaries of the territory, region or locality to which the geographical signs of production points apply related to the goods.
  8. The type, quality, reputation or other characteristic of the goods in respect of which the geographical signs of production points is applied, which is or are essentially attributable to the goods.
  9. An explanation related to the type, quality, reputation or other characteristic identified under subparagraph (7), and the geographical origin of the goods to which the geographical signs of production points applies.
  10. Attaching the standard mark on the product units in accordance with applicable standards.

Furthermore, The Applicant shall submit the following documents as attachments with the application of Geographical signs of production points for registration to the Central Business Registry:

  1. Documentation of the controlling and monitoring procedures implemented by the Responsible Authority, to verify that the geographical signs of production points for which registration is sought is applied consistently and exclusively to goods that have the specified type, quality, reputation or other characteristic essentially attributable to production place, area or region.
  2. A map or written description indicating the political, administrative, topographical or other specific boundaries of the territory, region or locality identified, whether literally or implicitly, by the proposed geographical signs of production points.
  3. Specimens of the geographical signs of production points as used in trade;
  4. A list of producers whom the Responsible Authority has verified, at the time of the application (as meeting the criteria to use the relevant indication in trade);
  5. The payment receipt of application fee, based on the prescribed procedures.

The inventor acquires the exclusive right to manufacture, export, sell, sell and use the product, thus making, using, offering, selling, importing or importing a product or process based on patents without registration. The previous permission of the owner is prevented and the right conditions are created for a safe presence in the market.