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Exploiting 'Brand Jamaica'

Published:Sunday | September 14, 2014 | 12:00 AM
Four members of staff of Nigel's Sweet Jamaican Almond Oil separate almond nuts from kernels. From left are Joel Wood, Nicholas Bailey, Kelisha Biggs and Paula Scott.-File
Jessica and Nigel Haughton in their yard at Red Ground in Negril.-Photo by Claudia Gardner

American businessman blocks Negril couple from using the name 'Jamaican Almond'

Claudia Gardner, Assignment Coordinator

WESTERN BUREAU:The uphill battle to prevent the registering of trademarks bearing the name 'Jamaica' in other countries came into sharp focus last week, when a notice was served on Jamaica's first official almond farmers, stopping them from using the now-patented words 'Jamaican Almond' on any product.

The couple, Jessica Haughton and her husband Nigel, of Red Ground in Negril, say they were alarmed when a few days ago they received a letter from a Jamaican attorney representing a former American business partner, which stated that he had patented the words in the United States (US), and that the words could not be used without his permission.

The letter which came from the businessman's Kingston-based attorney indicated that, among other things, "the Trademark Application for Jamaican Almond has been awarded an official United States Patent & Trademark (USPTO) registration ... which precludes anyone from using those words on any corporate names, brand names, domain names, trademark applications, and/or trademark registrations for or including the 'Jamaican Almond' trademark in the United States without prior written approval".

The Haughtons manufacture virgin almond oil at their base in Negril, which is sold to residents, boutique hotels and gift shops within the resort town. They have cultivated almond trees on their property, but harvest most of the nuts at Half Moon Beach in Hanover and at Hog Heaven in Negril.

The micro-business, which employs seven persons from the community, was established after Nigel accidentally discovered, just over a year ago, that raw almonds could be pressed for oil.

Met businessman in 2013

Jessica Haughton said she and her husband had met the businessman in 2013 through a mutual friend. She said the American approached them about becoming a partner in the business in February 2014, but that this, for various reasons, was later dissolved.

"During the good part of our relationship, he mentioned trade marking the name 'Jamaican Almond' and I asked him please do not trademark that name, that right should be reserved for a Jamaican. With me being an American, I don't even want to be the registrar. It should be my husband because he is Jamaican and they are Jamaican almonds," said Jessica.

When The Sunday Gleaner contacted the Jamaica Intellectual Property Office (JIPO), Herman Dawson, assistant manager of the trademarks, designs and geographical indications directorate, said incidents such as these continue to occur because the quest for the protection of the country's name has not received much support internationally at the World Intellectual Property Organisation (WIPO).

"If the person does have a registration in the United States for that term (Jamaican Almonds) or that trademark, then essentially what the registration does is it would allow the protection of that name in the United States, and by virtue of that protection, they can preclude anyone else from using that name in respect of the goods or services in respect of the trademark that has been registered," said Dawson.

"Countries throughout the world will register trademarks that have the name Jamaica in it, whether there is any proof of affiliation with the country Jamaica. So it can happen, and if it has happened then it would certainly mean they have the registration in the United States, and by virtue of that the protection in the United States," added Dawson.

Proposal to WIPO

During the WIPO Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications' 27th Session in Geneva, Switzerland, in September 2012, the delegations from Jamaica and Barbados submitted a joint proposal for the protection of country names, arguing that the use of a country's name by a third party with no association with the country can have a severe impact on a developing country's economy.

The delegations also recommended that WIPO undertakes a study on the protection of country names.

The Haughtons' company has been registered with the Companies Office of Jamaica as 'Nigel's Jamaican Almond World', and according to Dawson, this could prove challenging for the couple if they were to attempt to distribute their product in the US.

"It may very well pose a problem. Certainly, if the proprietor who registered the trademark in the US believes that what they are using comprises a very significant part of the trademark, so it may very well pose a problem," said Dawson.

"Ultimately, maybe a court could decide if there is an infringement. But someone can always take action if they perceive that the name that they (Haughtons) are using infringes upon their rights or basically incorporates too much of their trademark in it.

"Many countries are not so receptive to the protection of country names for whatever reason. So you will find trademarks being registered all over the world with 'Jamaica' in it, but our hands are really tied in terms of what we fundamentally can do, because the countries have their own practices and their own legislation which deal with trademarks."