Protecting our Rights: Intellectual Property versus Cultural Appropriation – Part 2

Since the writing of the first part of this article on June 21, a few developments have emerged in the “J’ouvert Rum” story. Trinidad ad Tobago-born Nicki Minaj, used her platform to ask Michael B. Jordan to change the name of the rum from “J’ouvert” and Jordan himself, released a statement on his Instagram reading in part, “…our intention was never to offend or hurt a culture (we love and respect) & hoped to celebrate & shine a positive light on, last few days has been a lot of listening. A lot of learning & engaging in countless community conversations…”. He apologised and then confirmed that he and his business partners were “…in the process of renaming [the brand]…”.

Additionally, the situation has opened up myriad conversations all over various social media platforms, ranging from the historical origins of “J’ouvert” (Grenada? Trinidad and Tobago? The French countries of Martinique and Guadeloupe?) and pre-Lenten carnival in the Caribbean, to whether citizens of Caribbean countries should be upset at all as it was “just business”. One of the major points also emanating from this discussion is that much of this history is not well known to the general public, even to those who regularly participate in these festivals. This is not to say that it has not been documented because in some of the online discussions, academic sources are mentioned. Neither is this meant to be a debate on origins as that is not the point of this article.

Again, as noted on Monday, Jordan and his partners were not incorrect from an intellectual property law standpoint by registering the trademark for use in the USA and specifically for certain types of alcoholic beverages. As stated, this was not the first trademark registration for the word at the United States Patent and Trademark Office. However, much of the backlash came from the description of the word in the trademark application and the reference to and representation of Trinidad and Tobago on the PR box which was shown on social media. Other critics were concerned that this, combined with Jordan’s A-List status, could eclipse the historical meaning of the cultural celebrations over time depending on the product’s popularity. Whether this would have happened, we will never know.

In the context of Barbados, where I am from, we may not have a dog in this fight, as our “Foreday Morning” celebrations have not been around anywhere near the amount of time that the “J’ouvert” celebrations have been, even though, the execution is quite similar. However, I can only imagine if someone had sought some sort of intellectual property protection for a product named “Foreday Morning” with little to no reference to its meaning in Barbados. Bajans would have eaten them alive via social media! In fact, one does not have to travel too far down the internet hole to find 2 examples of misrepresentation of Barbadian food and culture.

The first was the international media coverage of Rihanna’s participation in the annual Crop Over festival in 2011, which was clear that little to no research was done on the festival and its history. Then more recently, a Sandals Resorts blog entitled, “28 Popular Foods & Drinks You Must Try When in Barbados” misrepresented traditional Bajan dishes and faced enormous backlash on Twitter from angry Barbadians. While many of the photos were quickly changed, presumably due to the online response, the following photo of so-called “Fish Cakes” remains as of the date of this writing.

These are NOT Bajan Fishcakes and they are not served with rice

From an intellectual property law standpoint, to answer the many questions which have surfaced about the best way to protect aspects of Caribbean cultural heritage and traditions, apart from Trademarks, Patents, Geographical Indications and Copyright, there is Traditional Knowledge. According to the World Intellectual Property Organization (WIPO), Traditional Knowledge is defined as “…knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.”

It is important to note that while a definition of Traditional Knowledge (TK) has not yet been agreed to at the international level, it can be said that in a “general sense it embraces the content of knowledge itself as well as traditional cultural expressions, including distinctive associated signs and symbols. It refers to knowledge resulting from intellectual activity in a traditional context and includes know-how, practices, skills and innovation. Traditional knowledge can be found in a wide variety of contexts, including: agricultural, scientific, technical, ecological and medicinal knowledge as well as biodiversity- related knowledge.” (WIPO)

WIPO also advises that innovations based on TK may benefit from the Intellectual Property protection referred to above and in Part 1 of this article or be protected as a trade secret or confidential information. However, traditional knowledge, i.e. that which has ancient roots and is often oral – is not protected by conventional Intellectual Property systems.

This could be a route for many Caribbean countries to explore, particularly seeing that there is consideration of “Traditional Cultural Expressions” (TECs), and WIPO states that TCEs, also called “expressions of folklore”, may include music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions. “TCEs are integral to the cultural and social identities of indigenous and local communities, embody know-how and skills, and transmit core values and beliefs. Their protection is related to the promotion of creativity, enhanced cultural diversity and the preservation of cultural heritage. ” (WIPO)

There is much information to be found via WIPO on this subject and it should be noted that some countries around the world have enshrined such traditions into their domestic law. However, with regard to international law, WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore is in the process of negotiating international legal protection of TCEs. According to the information provided, to date, no Caribbean countries have made submissions to the committee.

In the meantime, when this firestorm loses its power and another topic pops up to engage everyone’s attention, what will we do? Barbados has been undergoing the process to register a Geographical Indication for “Barbados Rum”, considering that the country is known as the “birthplace of rum” and because of this, it was agreed to establish the process on an international level of how it is made. According to Raphael Grisoni, Managing Director of Mount Gay Distilleries, “…Establishing a Geographical Indicator for Barbados Rum will help us build a stronger value-proposition and keep the financial benefits of that added-value here in Barbados.”

Considering the potential for arguments as to who invented what and when in relation to other forms of cultural expression in the Caribbean, it is recommended that such ventures be dealt with at the regional level, with the involvement of the appropriate stakeholders (e.g. cultural and historical practitioners). Our history is rich and in many instances, it is shared, thanks to hundreds of years of movement of our people among our countries. Again, if we don’t seek to protect it, someone else will.

Protecting Our Culture: Intellectual Property Rights versus Cultural Appropriation

Trinidad and Tobago Twitter, with much support from persons from the Caribbean and in the Caribbean Diaspora, was ablaze from June 20, 2021 following the discovery that American actor Michael B. Jordan and business Partner Scott Williams (who social media has identified as having Trinidadian roots) recently launched “J’ouvert Rum”.

An examination of the trademark online shows 1.) that the trademark which is registered with the United States Patent and Trademark Office (USPTO) (as of June 1, 2021) represents “Alcoholic beverages, except beer, distilled spirits, rum-based beverages and rum” and 2.) the description of the word is stated as having “…no meaning in a foreign language.” Further, based on the photographs of the inside cover of the PR box (as seen on Twitter) the product is described as “…the Antillean Creole French term meaning “daybreak”, J’OUVERT originated in the pre-dawn streets of Trinidad, as celebrations of emancipation combined with Carnival season to serve as the festival’s informal commencement. Crafted on those same islands, J’OUVERT Rum is a tribute to the “party start”. Above the description is a misshapen image of Trinidad in orange and two additional unidentifiable images in blue and green (it is not clear whether one of them is to represent Tobago).

Much of the ire coming from those from Trinidad and Tobago is based on a few key points. The first is the fact that a famous person who was not born in the Caribbean or as far as is known, does not have Caribbean roots nor has even visited Trinidad and Tobago nor participated in its Carnival, teamed up with someone who we are told has Caribbean roots but lives in the USA, to create a product which is named after a culturally significant event in Trinidad and Tobago. It is thought by some that this may lead consumers to believe that the Carnival event was named after the rum and not the other way around. The second point is that the trademark registration details state that the word has no meaning in a foreign language (although the boxed set referenced above attempts to do so) and the third is that in general the small countries of the Caribbean seem to be particularly susceptible to cultural appropriation from those in larger countries.

The most important point which arises from this issue however, is that we need to understand and be fully aware of our rights in the intellectual property space. Given how connected the world is today, Caribbean business persons, governments and cultural practitioners need to guard their intellectual property rights fiercely, especially in seeking to protect their creations or elements of what is important to a country’s identity.

It is also important to understand what is the most appropriate method of protection and how the systems work, so as not to conflate issues of intellectual property rights with discussions about cultural appropriation. For example, having reviewed the USPTO for the trademark, “J’OUVERT”, there are five (5) trademarks with that name on the list, three (3) of which are no longer valid and two (2) of which are “live”. Apart from the trademark registered for alcoholic beverages, there is another one owned by a business in California with the same name but the trademark represents audio and video recordings, digital media, etc. There was also a trademark which was registered as “Red Antz Miami Jouvert” for “Entertainment services in the nature of organizing social entertainment events; Organization of events for cultural purposes; Organization of dancing events; Organizing community sporting and cultural events; Organizing cultural and arts events.” but that trademark was abandoned in 2018 in the same year that application was filed.

This leads us to the question, what is a trademark and what protection does it offer? According to the World Intellectual Property Organization (WIPO), “A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises” (e.g. “Coca-Cola” or “Mercedes-Benz”) . It is also extremely important to note that trademarks are territorial, they are registered in what are called “Classes” and they are only valid for a specific number of years. Therefore, barring any treaties signed among countries which may alter this process, in order for a business to protect its brand in another country, it has to register the trademark in that country. Also, if a trademark is registered in a particular Class (e.g. alcoholic beverages) there is nothing to stop another business from registering the same name to represent another product (e.g. air fresheners, as this has been done before under the name “J’ouvert” with the USPTO). Finally, the validity of a trademark, i.e., its “life” lasts for a specific period of time (e.g. in Barbados, it is 10 years), after which, unless it is renewed, it can be used by another brand.

Another form of intellectual property protection which may be of interest is a geographical indication. According to WIPO, a “geographical indication (GI) is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. In order to function as a GI, a sign must identify a product as originating in a given place. In addition, the qualities, characteristics or 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 clear link between the product and its original place of production”. (WIPO)

“A GI right enables those who have the right to use the indication to prevent its use by a third party whose product does not conform to the applicable standards. However, a protected GI does not enable the holder to prevent someone from making a product using the same techniques as those set out in the standards for that indication. Protection for a GI is usually obtained by acquiring a right over the sign that constitutes the indication. Additionally, geographical indications are typically used for agricultural products, foodstuffs, wine and spirit drinks, handicrafts, and industrial products”. (WIPO) Examples of well-known GIs are Mexico’s “Tequila” and France’s “Roquefort Cheese” and “Champagne”.

“GI’s 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 can thus be a key element in developing collective brands for quality-bound-to-origin products”.

Finally, a person or business can also register a patent, which is “an exclusive right granted for an invention, a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem” (WIPO) or they can copyright a Work which allows creators to have “rights over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings”. (WIPO)

It is therefore imperative that 1.) before entering into any business venture, the business owner must explore all avenues into protecting his or her intellectual property in as many markets as required and to ensure that all registrations are renewed at the required time so that valuable goodwill is not lost and 2.) governments and state-owned cultural entities must look into protecting what is deemed to be culturally significant. If protection is possible, by all means, take the steps to do so. It is also a good way to boost the morale of citizens.

On the issue of cultural appropriation, which is defined as the “unacknowledged or inappropriate adoption of the customs, practices, ideas, etc. of one people or society by members of another and typically more dominant people or society.” (Oxford) it can be argued that misrepresenting, telling half of the story or ignoring the significance of the origins of your product to another person’s culture is detrimental to that person’s very identity or it allows for profit off of years of someone else’s work by someone who is of a different background. Those arguments are valid and cannot be ignored. However, it may also be argued that if the platform exists legally for a person to protect the intellectual property aspect of their business they should go right ahead.

What this entire experience ultimately shows however, is that as Caribbean people, we absolutely need to protect our culture as much as the law permits as no one will do it for us. Our ability to guard our heritage and of course, use it for financial gain rests entirely on our shoulders, let us do our best to do so.

Barbados as Co-Host of the 15th UNCTAD Quadrennial Conference in 2020: Looking Forward to the Possibilities

October 2020 will be significant for Barbados’ role in hosting a major international conference, the setting of trade policy and growth strategy as well as tourism arrivals.  What is the common denominator for the three aforementioned points?  Next year, Barbados will be the co-host of the 15th Quadrennial of the United Nations Conference on Trade and Development (UNCTAD), along with the United Arab Emirates (UAE), which will host the World Investment Forum and the first eCommerce Week for Asia in Abu Dhabi.  Barbados is the first small country to do so.

UNCTAD’s Trade and Development Board unanimously endorsed the offers to host by both Barbados and the UAE on June 25, 2019.  The next step is for the UN General Assembly to approve the decision.

To quote directly from UNCTAD, “The Quadrennial Conference is the highest decision-making body of UNCTAD at which member states make assessments of current trade and development issues, discuss policy options and formulate global policy responses.” Additionally, according to Mr. Chad Blackman, Ambassador and Permanent Representative to the WTO and UN Offices in Geneva, Switzerland, “Barbados will be the global Chair from 2020-2024 to set the agenda for issues on trade and development.”

The ten-day conference in Barbados will not only host around 3500 persons, which as alluded to above is a huge boost for our tourism sector but a number of parallel events will also make up the proceedings.  These “side events” will be the Global Commodities Forum, Global Cultural Industries Forum, the UNCTAD Ministerial on Trade and Development, World Civil Societies Forum and the World Youth Forum.

In February this year, Secretary General of UNCTAD, Dr. Mukhisa Kituyi, visited Barbados and was the featured speaker at a lecture co-hosted by the Shridath Ramphal Centre for International Trade Law, Policy and Services and the Ministry of Foreign Affairs and Foreign Trade.  Dr. Kituyi spoke on “The Role of UNCTAD in Trade and Development in the Caribbean.”

Following the Secretary General’s presentation which covered, among other things, obstacles faced by small island developing states and the state of the multilateral system, attendees engaged him on a number of topics.  The common threads of discussion ranged from how small states could use UNCTAD to highlight challenges such as climate change, trade and health and how to make our individual small voices resonate as a collective at the negotiating table, particularly with the seemingly imminent collapse of the multilateral system as we know it.

We have a little over a year to formulate our strategy not only as Barbados but as CARICOM States in our approach to the opportunities that this conference is hoped to afford.  October is the beginning of four years in which we can make the difference of which we have been speaking for so long.

Let us use this positioning as a way to educate and involve our private sector at a level which will allow them to not only understand why creating trade policy for us is so important but to show them the possible benefits for their bottom lines as well.  Let us use this opportunity as governments to engage in meaningful macroeconomic policy formation which drives growth not only in traditional but in newly emerging sectors. Let us take advantage of this upcoming occasion and being global Chair to create the economic prosperity we aspire to achieve.




BREXIT, Economic Partnership Agreements and the Barbados Private Sector

Caribbean businesses, including those in Barbados which operate in the manufacturing and retail sectors rely heavily on both imports from and exports to both regional and extra-regional markets.  The United Kingdom (“UK”) and the European Union (“EU”) are our trading partners whose relationship to the CARICOM and subsequently CARIFORUM region were improved (at least on paper) for the betterment of our region with the signing of the CARIFORUM-EU Economic Partnership Agreement in 2008 (“EU-UK EPA”).

As of the time of writing this article, the UK is desperately trying to finalise an acceptable deal which would allow for an exit from the European Union which is beneficial to the UK.  Attempts to reach such an agreement has thrown the UK government into turmoil.  The recent third attempt at a withdrawal plan piloted by Prime Minister Mrs. Theresa May, suffered yet another defeat by MPs and the UK Parliament is now expected to vote on BREXIT alternatives on April 1.

Where does this leave private sector-led businesses in CARIFORUM? How are they likely to be affected by the UK no longer being a part of the EU?  Certainly in Barbados, an import-reliant economy, it is a question which needs to be considered seriously by the business community.  However, is BREXIT and its potential impact on “bottom-line” on their collective radar?  Has there been a private sector-led initiative to understand BREXIT and its effects? Have companies put together post-BREXIT strategies? What of the EPA when the UK is no longer a part of the EU?

On March 22, 2019, CARIFORUM countries (inclusive of Barbados), signed the CARIFORUM-UK Economic Partnership Agreement (“UK EPA”) with the UK to preserve its current trade relations after Brexit becomes a reality.  The agreement mirrors the preferential trade arrangements currently in force under the EU-UK EPA in addition to repeating the UK’s EPA commitments regarding development cooperation.  This agreement would certainly invoke a collective sigh of relief among members of the business community.  In fact, it has been reported that the agreement “…has been welcomed by the West Indies Rum and Spirits Producers Association…”.

Should private sector companies in Barbados be comfortable and rest assured that trading relations are indeed “safe”?  In the short-term, CARIFORUM countries having signed the UK EPA is indeed a consolation of sorts.  While there are large entities in Barbados such as supermarkets or pharmacies which may have felt unease with the pending exit of the UK and what this might mean for their business with the UK, others such as those which import fast-moving consumer goods whose businesses traded more within CARICOM and with EU countries did not feel the need to implement a BREXIT strategy.

In terms of long-term strategy, is there evidence that the private sector in Barbados is thinking of ways in which to extend their use of the EU-UK EPA and the UK-EPA beyond what has applied for the past 11 years?  Lamentations abound from persons who were intimately involved in the negotiations of the EU-UK EPA that trade agreements of this kind tend not to be private sector driven in this country.  Especially in light of the fact that the bulk of our trade remains in commodities such as sugar and rum, do we wish to go beyond such?

The purpose of going into business is to make money and particularly if the company is public, directors must answer to shareholders.  In the case of Barbados, which is currently in the throes of the Barbados Economic Recovery and Transformation (“BERT”) Programme, the private sector has had, within the years prior to BERT, to manage the implementation and removal of taxes such as the National Social Responsibility Levy, high corporation taxes which have since been lowered significantly, government retrenchment of workers which further impacted the ease of doing business and the effects of the suspension of payment government debt.

Perhaps it can be argued that businesses had “bigger fish to fry” at the domestic level than to concern themselves with trade policy issues which are typically seen as more of an abstract concept than the day-to-day reality.  At its most basic level, while the business person is aware of the occurrence of BREXIT and may look at it from the point of view of its current business model, it is important for him to take the time to really understand how these current major agreements can drive growth.

It is recommended that a private-sector focused refresher on the EU-UK EPA and the UK EPA is carried out by government which would bring current opportunities into view for companies.  It is acknowledged that there are companies in Barbados which have already heavily explored options and established businesses either on their own or with joint venture partners in Central and South America and North America.  However, considering that we have current, extremely forward-looking agreements already with both the UK and the EU, our businesses should look seriously into how to take our exports into these markets beyond traditional commodities.  The space has been there for 11 years, it is time to make serious use of it.


The Caribbean Community (Amendment) Bill, 2019 and the human element of doing business in Member States

On the heels of an unfortunate but expected “release” of information on social media this past week about the purported effects of Barbados’ plans to implement CARICOM’s “Protocol on Contingent rights” (“the Protocol”) via the Caribbean Community (Amendment) Bill, 2019, it is imperative that the Barbados Government educate its citizens and residents about this new law.

Barbados along with Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines and Suriname, signed on to the Protocol at the recently concluded 30th Inter-sessional Meeting of the Conference of Heads of Government of CARICOM in Basseterre, St. Kitts.  Barbados has moved to immediately adopt the Protocol into its domestic law, which is currently at the Senate reading stage.

Currently the following persons fall into the category of skilled nationals who may move freely (without the requirement of a work permit) throughout Member States: graduates who have obtained at least a Bachelor’s Degree from a recognised university, media persons, artists, musicians, sports persons, nurses, teachers, artisans with a Caribbean Vocational Qualification (“CVQ”), holders of Associate Degrees and household domestics with a CVQ or equivalent qualification.  Coming out of the Special Meeting on the CARICOM Single Market and Economy held in Trinidad on December 3 and 4, 2018, Member countries agreed to include the following categories of persons to the list of  freely moving skilled nationals in the near future:  agricultural workers, beauty service practitioners, barbers and security guards.

Some of the rights granted are for the spouse (inclusive of common law unions) of the primary beneficiary (the skilled person) to work in the host country without the need for a work permit, that dependent children would have access to education on a non-discriminatory basis, that the primary beneficiary, spouse and dependent children would have access to primary health care in addition to the right to leave and re-enter the host country.

With regard to businesses which operate regionally, this new law adds a level of comfort to employees with families who are transferred to branches or subsidiaries in other islands.

An employee is likely to feel more inclined to accept a transfer or to apply for a position in another country without feeling stressed about leaving his or her family behind.  Once implemented correctly, concerns about the separation of families would be reduced significantly and in an ideal situation, eliminated.  In fact, Prime Minister of Barbados, Mia Amor Mottley, stated at the St. Kitts meeting, “So the notion that only a spouse is to get the benefits of the rights, but dependents are not, is nonsense that carries us back to the separation of families to a time that we would want to forget rather than remember.”

Given the thrust toward health and wellness in the workplace throughout the region, it must be acknowledged that an important element of a well functioning business is to have a workforce whose mental health is considered by management.  An employee is less likely to function at his or her best if there is a worry about a spouse or children whose lives are negatively affected by their absence or there is the additional financial burden of constant expensive intraregional travel on weekends or for special occasions.

The Protocol and its corresponding domestic laws are also expected to address complaints from CARICOM nationals who currently live and work outside of their home countries and in spite of the fact that they are paying taxes in their country of work are unable to access basic services similar to their counterparts who are tax-paying citizens of that particular country.

While the Protocol is indeed welcomed, it would be irresponsible to dismiss the fact that each CARICOM Member State suffers from myriad internal and external threats which, when coupled with their status as small open economies, must be balanced with the new rights granted.  Rising or high levels of crime, varying levels of economic success and in some cases, yawning divides between rich and poor, are all high on the agenda at the domestic level for our governments.

The need for education at all levels of society via various forms of media about what our countries have agreed to at a regional level must not be underestimated.  Barbadians are currently grappling with high levels of gun crime and an economy which is clawing its way back from the brink of certain death.  Those who live here are more concerned about the rudiments of every day life, the high cost of living, a broken public transportation service, over-populated classrooms and a burdened public health system.  Our leaders must work to bring our social services to a level commensurate to the taxes paid.

The minds of Barbadians and daresay, citizens of other CARICOM States are not necessarily attuned to the fact that as a region, particularly in light of the new direction of the multilateral trading system, CARICOM has no choice but to combine its resources to face the challenges coming its way.   One way to face these challenges is that our people must be provided with an environment not only conducive to business but one which allows for a comfortable standard of living throughout the region, hence the Protocol.