Collective Trade Marks: an Overview

2013] F-1 Collective Trade Marks: An Overview Prachi Gupta* Collective marks are usually defined as signs which distinguish the geographical origin, material, mode of manufacture or other common characteristics of goods or services of different enterprises using the collective mark. The owner may be either an association of such enterprises who are members or any other entity. In other words, a collective Trade Mark or collective mark is a Trade Mark owned by an organization or an association), used by its members to identify themselves with a level of quality or accuracy, geographical origin, or other characteristics set by the organization. This article discusses collective Trade Marks vis-a- vis competition law and how there is a need to create a fine balance between the both. Under the Intellectual Property Law of that the trader belongs to the association most countries, there are provisions on who own the collective Trade Mark. the protection of collective marks. Collective marks are often used to Collective marks are usually defined as promote products which are signs which distinguish the characteristic of a given region. In such geographical origin, material, mode of cases, the creation of a collective mark manufacture or other common not only helps to market such products characteristics of goods or services of domestically and occasionally different enterprises using the collective internationally, but also provides a mark. The owner may be either an framework for cooperation between local association of such enterprises who are producers. The creation of the collective members or any other entity. In other mark, in fact, must go hand in hand with words, a collective Trade Mark or the development of certain standards collective mark is a Trade Mark owned and criteria and a common strategy. In by an organization or an association), this sense, collective marks become used by its members to identify powerful tools for local development. The themselves with a level of quality or function of the collective mark is to inform accuracy, geographical origin, or other the public about certain particular characteristics set by the organization. features of the product for which the Collective Trade Marks are exceptions to collective mark is used and the owner of the underlying principle of Trade Marks the collective mark is responsible for in that most Trade Marks serve as ensuring the compliance with certain “badges of origin”; they indicate the standards (usually fixed in the individual source of the goods or services. regulations concerning the use of the A collective Trade Mark, however, can collective mark) by its members. Most be used by a variety of traders, rather than jurisdictions require that an application just one individual concern, provided for collective mark be accompanied by a * Prachi Gupta, Advocate, currently Legal Expert at Competition Commission of India. She may be reached at [email protected]. Manupatra Intellectual Property Reports v October 2013 147 Published in Articles section of www.manupatra.com F-2 Manupatra Intellectual Property Reports (MIPR) [Vol. 3 by anybody who complies with the Collective Trade Marks come in standards defined by the owner of the play when products which particular certification mark. The case of Chirimoya Cumbe1 is worth may have certain characteristics citing in this regard. Matildo Pérez, a specific to the producers in a peasant from a village community in the heights of Lima applied to the National given region, linked to the Institute for the Defense of Competition and Intellectual Property of Peru historical, cultural, social (INDECOPI) for registration of the Trade conditions of the area Mark “Chirimoya Cumbe.” His application was refused, however, owing to the fact that quite simply no exclusive copy of the regulations which govern the rights in generic names can be granted use of the collective mark. Collective to a single person. Don Matildo appeared Trade Marks come in play when again, with a delegation headed by the products which may have certain Deputy Mayor of Cumbe, seeking an characteristics specific to the producers appointment with the Head of the in a given region, linked to the historical, Distinctive Signs Office of INDECOPI. On cultural, social conditions of the area. A reading the power of attorney, the collective mark may be used to embody INDECOPI official smiled with such features and as the basis for the satisfaction: the people of Cumbe, marketing of the said products, thus gathered together on the main square, benefiting all producers. Associations of had empowered Don Matildo Pérez to small and medium enterprises register register the Trade Mark. It seemed utterly collective marks in order to jointly market incredible: the community had their product(s) and enhance product understood fully that securing recognition. Collective marks may be registration for the mark gave them used together with the individual Trade exclusive rights in the use of the Cumbe Mark of the producer of a given good. name. However, as the official told them, This allows companies to differentiate “Chirimoya Cumbe” is in fact an their own products from those of appellation of origin, not a Trade Mark. competitors, while at the same time To be more precise, the second is an benefiting from the confidence of the appellation of Peruvian origin, because consumers in products or services offered the valley of Cumbe is a geographical area under the collective mark. Collective may that gives certain distinctive properties therefore represent useful instruments to the Chirimoya. At the outset they were for SMEs assisting them to overcome delighted with this idea, and went back some of the challenges associated with to their village. small size and isolation in the market place. The following week, however, they were once again at the office: “We do not want Collective Trade Marks differ from an appellation of origin; our village does certification marks and the main not want one because it is said that with difference is that collective Trade Marks appellations of origin the State is the may be used by particular members of owner, and it is the State that authorizes the organization which owns them, use, and that is why we are saying no. while certification marks may be used We do not want the State to be the owner 1 As available on World Intellectual Property organisation website, last visited on 03.10.2013, http://www.wipo.int/sme/en/case_studies/chirimoya.htm 148 Manupatra Intellectual Property Reports v October 2013 Published in Articles section of www.manupatra.com 2013] Collective Trade Marks: An Overview F-3 of the `Cumbe’ name, because we have bearing their name, but also marks out a been working with it for a great many framework for legislation on the years. Since the time of our grandparents protection of their knowledge. Successful all have been investing a great deal of experiments with collective marks have effort, and we are not prepared to ask not only enabled smaller businesses to you for permission to use our “Cumbe reduce their costs, but also made them Trade Mark.” After an arduous and more competitive on the market. Through creative search for solutions, it was this machinery, SMEs have protected and suggested that what should be registered distinguished their goods for less cost, was a “collective” mark, the owners of which in turn has given them the benefits which would be the people of Cumbe and of economies of scale and also increased which would be used according to rules their clients’ faith in them. Given that the that they themselves would lay down. cost of investing in the development of a Today the name “Chirimoya Cumbe” mark, and also that of the marketing and has its own characteristic logo and, more advertising campaigns, can be high for importantly, is registered in the name of an SME, collective marks have become a the village of Cumbe (in Class 31 of the cost-saving device which at the same International Classification), and the time serves to distinguish products latter are working to gain a competitive originating in Peru, and emphasizes edge over their rivals in Lima’s characteristics specific to the areas in Wholesale Fruit Market. In that way, which the products are made. Part of this thanks to the persistence and drive of strategy consists in developing a Don Matildo, and his ability to make use common concept and image which of the intellectual property protection identifies the SMEs or the products made system, his village has increased the by them, and in concluding “quality value of its individuality, its knowledge pacts” which have to be implemented by and its tradition of excellence. means of the rules on the use of the 2 The owner of the collective mark marks. registration is the village of Santo Toribio Similar is the APDL Cajamarca Peru - de Cumbe, composed of 106 residents Dairy By-products case3. Cajamarca is a duly recorded in the population census. department of Peru located more than The rules for the use of the mark relate to 3,000 meters above sea level. Owing to the proper handling of the Chirimoya its geographical location and natural product, which is produced in the valley attributes it has been able to carry on an of the same name (Cumbe), the climatic important production activity with its conditions of which give the product its livestock. It is well known for its cheeses, special characteristics. yogurt, blancmanges, butter and other In specifying that only the members of a products. The name Cajamarca is community - or someone else with due associated with that activity. The authorization - may register its name as products are sold in the zone (city), in a Trade Mark, the recent Industrial mini-markets and through travellers, Property Law not only protects the native and many of the products are of very high communities and gives them exclusive quality and have an established competence for the exploitation of goods reputation.

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