My Thoughts on Technology and Jamaica: Why Nigel's Sweet Jamaican Almond Oil can't be used in US of A as JIPO must help

Saturday, October 18, 2014

Why Nigel's Sweet Jamaican Almond Oil can't be used in US of A as JIPO must help

“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”

Assistant Manager of the Trademarks, Herman Dawson commenting on the Case of the Jessica and Nigel Haughton company Nigel's Jamaican Almond World that is being barred from using the words “Jamaican Almond” in the United States of America

The JIPO (Jamaica Intellectual Property Office) exists to protect the IP (Intellectual Property) of creative musicians and artist from being used without their expressed permission. For them, it’s as simple as joining one of the three (3) active CMA (Collection Management Agencies) registered in Jamaica for the protection of various groups:

1.      JAMCOPY (Jamaica Copyright Licensing Agency)
2.      JACAP (Jamaica Association of Composer, Artistes and Producers)
3.      JAMMS (Jamaica Music Society)

But what do you do when someone in another country trademarks a phrase or name of a product that contains the Word “Jamaica” in it?

That’s the curious case of owners of the Almond Oil business Jessica and Nigel Haughton who live in Red Ground in Negril in Westmoreland who recently received a letter from an American businessman claiming that he'd patented the words “Jamaican Almond” and thus they could not use the words in their company's name as noted in the article “Exploiting 'Brand Jamaica'” Published Sunday September 14, 2014, by Claudia Gardner,  The Jamaica Gleaner .

The Haughtons company, named Nigel's Sweet Jamaican Almond Oil as shown on their Nigel's Sweet Jamaican Almond Oil Facebook Page  began making Virgin Almond Oil.

This after Nigel Haughton made the serendipitous discovery of the Oil coming out of Almonds when they are pressed in a manner similar to Olives being crushed for their Oil as chronicled in the article “Sweet Success Of Almond”, Published Saturday April 12, 2014, The Jamaica Gleaner.

They are in effect, Jamaica's first official Almond Farmers and producers of Virgin Almond Oil, an interesting fact considering that Almonds have been around for years. With a staff of seven (7) from the community of Red Ground in Negril, Westmoreland, they make Virgin Almond Oil.

The Oil is extracted and bottled and labeled for local sale mainly in Gift Shops in Negril, mainly:

1.      Jackies on the Reef
2.      Rockhouse
3.      Zimbali Retreats

The pure Virgin Almond Oils is apparently good for many health problems according to Chief Naturopathic Consultant at the Healthy Living Herbal Clinic and President of the Caribbean Natural Remedies Association Dr. Maureen Minto as listed in the article “Almond: cure-all seed”, published Sunday, June 22, 2014 by Maureen Minto, The Jamaica Observer.

1.      Diabetes
2.      Heart disease
3.      Impotency
4.      Maintenance of healthy hair
5.      Skin (psoriasis)
6.      Teeth

However, when it comes to making money from the lucrative export market, despite all these benefits, they may have a problem, thanks to a dishonest business partner with an axe to grind.

Though they use the name “Nigel's Sweet Jamaican Almond Oil” the Haughton’s have actually registered their company with the Companies Office of Jamaica as “Nigel's Jamaican Almond World”, which is STILL a problem as it has the words “Jamaican Almond” within the name!

Nigel's Sweet Jamaican Almond Oil - Unable to Export because American Businessman holds Trademark for Jamaica

That's right, dear reader.

The Haughtons had been sent a letter by an American businessman they'd met a year ago in 2013. Back then, he had indicated that he wanted to become a partner in the business in February 2014.

Apparently, he's suggested in the early stages that he wanted to patent the name “Jamaican Almond" but Jessica was opposed to this action for the following reasons, quote: “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”.

The American Businessman ignored her request, as that letter was sent by his local Jamaican Attorney, advised them that they couldn't use the words “Jamaican Almonds” for their product if they decided to export to the United States of America, to quote that letter: “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”

Now the Haughtons are stuck in a pickle.

They are the bonafide discovers of Virgin Almond Oil and the first Almond Farmers in Jamaica, yet because of a disgruntled American businessman trade marking the name “Jamaican Almond”, they cannot export their product to make foreign exchange.

JIPO and the use of Jamaican Geographical Place names – No BTA with the Americans

Worse, there is little that JIPO can do, according to Assistant Manager of the Trademarks, Herman Dawson, quote: “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”.

It seems to be a common problem, which would explain why Jamaica only recently had signed a BTA (Bilateral Trade Agreement) in a bid to protect certain brand names and local place names i.e. Geographical Indicators of products from misuse in November 2013 as reported in my blog article entitled “Jamaica and Switzerland sign historic Bilateral Trade Agreement to protect Brand Names and Geographical Indicators - Escape Plan for the eventual Decriminalization and Legalization of Ganja”.

It came into effect at the 51st General Assembly of the WIPO (World Intellectual Property Organization) in Geneva in November 2013.

If that's the case, then it maybe that Jamaica simply hasn't signed such a BTA to protect Brand Names and Geographical Indicators with the US of A, particularly the use of the very name Jamaica in products that are not made in Jamaica

In fact, it may have no connection to Jamaica whatsoever, to again quote Assistant Manager of the Trademarks, Herman 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”.

So this'll come down to a legal showdown as advised attorney and owner of the T's by the Sea Restaurant in Industry Cove in Hanover as stated in the article “'Let Obama Stop Them!”, Published Sunday September 28, 2014 by Claudia Gardner, Assignment Coordinator, The Jamaica Gleaner.  Interestingly, the Haughtons may have the upper hand, even in the United States of America, thanks to a little Golden Krust.

The Haughtons Golden Crust Connection – Legal Precedent means JIPO BTA with USA coming

A similar case involving Golden Krust, a Jamaican eatery based in the US of A who’ve decided to sue rival company Silver Krust is currently being heard in the Manhattan Federal Court as stated in the article “Popular US/Jamaican food chain Golden Krust sues rival over name”, published Sunday, August 31, 2014 9:52 AM, The Jamaica Observer.

This story was such a big deal, it even got Press coverage within the US itself as noted in the article “Owners of popular Golden Krust chain says rival Silver Krust stole its name: suit”, published Friday, August 29, 2014, 12:36 PM BY DAREH GREGORIAN, The NY Daily News.

It’s basically setting the stage for a showdown over the use of Jamaican Brand Names by an American company and how the American Justice System treats Jamaican companies doing business in the US of A company.

If they win, and most likely they will, it's possible that the Haughtons may have a case, being as theirs is a similar one; a Jamaican company whose Trademark is being infringed upon by an American company that may be trying to sell American Almonds as Jamaican or worse, just being a troll and trying to block Nigel's Jamaican Almond World from being able to export their product to US of A!

I'll be following the outcome of this case, as it will set a legal precedent as to how America respects Jamaica's Geographical Indicators of products. Hopefully, that legal precedent will force America's IP Office to sign a BTA with Jamaica to protect our Geographical Indicators of products officially!

In the meantime, show some love for the

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