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Intellectual Property and Pharmaceutical Branding

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Title: Intellectual Property and Pharmaceutical Branding


1
Intellectual Property and Pharmaceutical
Branding
  • Dr. Guriqbal Singh Jaiya
  • Director
  • Small and Medium-Sized Enterprises Division
  • World Intellectual Property Organization
  • guriqbal.jaiya_at_wipo.int
  • www.wipo.int/sme

2
Global Security Study Perspectives for Life
Sciences
  • The chief security officer is the newest member
    of the C-suite in many life sciences companies,
    said Amry Junaideen, DTT life sciences leader for
    Security Privacy Services and a principal with
    Deloitte Touche LLP, who oversaw the study.
    Life sciences companiesrealize that security is
    an executive level issue, and applies to more
    than just information technology security. Recent
    trends in the industry including global supply
    chains, increased regulatory pressures,
    outsourcing, and the importance of brand
    reputation necessitate that the CSO position is
    a vital role in the success of any organization.
  • Strategically, tracking mechanisms reduce the
    risk of product theft and counterfeiting, allow
    increased precision of drug recall, and help
    protect the organizations brand reputation at a
    time of increasing concern over counterfeit drugs
    and the subsequent health effects.
  • http//www.deloitte.com/dtt/article/02C10022Ccid
    25253D1194212C00.html

3
  • Brand Medicine The role of branding in the
    pharmaceutical industryBy Tom Blackett Rebecca
    Robins Palgrave (2001)

4
Branding in the Pharmaceutical Industry By Tom
Blackett, Group Deputy Chairman of Interbrand
  • With the gradual decline in the power of the
    patent to secure future business earnings, and
    the rise in patient power and the availability of
    medicines, the brand will play an increasingly
    important role. First in helping customers to
    find and select products which are suitable for
    their requirements, and then as a symbol of high
    quality and value.
  • This is exactly the role that the famous Coke and
    Pepsi brands play - and these brands now
    represent the most valuable assets that their
    owners possess (in the case of Coke, some 50 per
    cent of the Coca-Cola Corporation's stock market
    value). There is no reason why this should not
    become the case in the pharmaceutical industry.
    Indeed, if the major drug companies are to
    maintain their historically high levels of
    profitability against a background of declining
    RD productivity, then it must do.

http//www.samedanltd.com/members/archives/PMPS/Sp
ring2002/TomBlackett.htm
5
Pharmaceutical Branding Strategies
  • Datamonitor October 19, 2001147 Pages
  • Pub ID DFMN734790  
  • US 6,100.00

6
Known as EMD Biosciences in North America and
Merck Biosciences in all other countries
  • Product brands Calbiochem Novabiochem
    NovagenThrough EMD Biosciences / Merck
    Biosciences, the product brands provide a single
    source for a broad range of optimum quality
    research products used worldwide in
    disease-related life science research. With more
    than 15,000 products in our portfolio, we offer
    innovative solutions to scientists at the cutting
    edge of research.
  • Calbiochem Biochemicals offers a wide range of
    biochemicals and kits for the study of disease
    states, signal transduction, apoptosis, cell
    cycle and protein chemistry research. Calbiochem
    Biochemicals also carries a comprehensive range
    of general biochemicals including detergents and
    proteases.
  • Calbiochem Immunochemicals offers high quality
    immunochemical reagents. In January 2004, the
    immunochemical product lines of Calbiochem and
    Oncogene Research Products were consolidated to
    form a broader immunochemical product line under
    the Calbiochem Immunochemicals brand. The
    Oncogene Research Products brand has supplied
    innovative, high quality, application tested
    antibodies and assay kits in many research areas,
    including apoptosis, cancer, cell cycle and
    proliferation.
  • The Novabiochem brand is the industry leader in
    the manufacture of innovative resins and reagents
    for peptide synthesis, solid phase organic
    chemistry and combinatorial chemistry. The
    Novabiochem brand is highly respected worldwide
    for the wealth of technical information available
    in catalogs and online.
  • The Novagen brand offers world-class protein
    expression and purification products. With the
    expansion in proteomics research, the Novagen
    brand is well placed to support scientists with
    tools for sample preparation and high-throughput
    purification and expression systems.
  •  http//www.merckbiosciences.co.uk/html/cnuk/about
    -us.html

7
Completion of Acquisition of Boots Healthcare
International
  • Reckitt Benckiser plc (RB.L) today announced that
    the acquisition of Boots Healthcare International
    (BHI) has been completed with effect from 1st
    February 2006.
  • Bart Becht, Chief Executive Officer of Reckitt
    Benckiser, commented today-
  • We are excited at getting ownership of BHI. It
    will give us a platform for additional growth at
    very attractive margins. BHI brings three new
    Power Brands in Nurofen, Strepsils and Clearasil
    whose distribution can be substantially expanded
    over time. In 2006, our major focus for this
    business will be on successful integration and
    extracting the promised synergies while gradually
    preparing the business for growth.
  • http//www.reckittbenckiser.com/newsroom/news_arti
    cle1.cfm?pressreleaseid20050

8
Modern Medicines Vs Functional Foods and
Alternative Medicines
  • Functional Foods (or nutraceuticals as they are
    sometimes called) and alternative (natural)
    medicines have become immensely popular with
    consumers who attach a high importance to
    maintaining healthy lifestyles. A few years ago
    interest in such products, would have been
    regarded as faddish. Nowadays their use is
    considered perfectly normal and indeed a very
    sensible alternative to a visit to the doctors
    surgery.
  • Both functional foods and alternative medicines
    are unrestricted in their availability, and the
    power of choice lies entirely with the consumer.
    Conventional medicine still dominates in the
    West, but such is the interest in natural
    remedies that it is not inconceivable that in
    many therapeutic areas they may come to dominate.

9
Mature Products
  • When a marketing manager treats a mature product
    as a commodity, he or she may feel the only
    option is to compete on price. But if one
    examines the mature products in the Life Sciences
    market, it becomes apparent that there are wide
    discrepancies in prices, profit margins and
    market share. This would not occur in a true
    commodity market. In fact, what is being observed
    is brand equity at work. Some vendors are able to
    charge far higher prices than others, for
    essentially the same product, simply because of
    the perceptions, beliefs and behavior exhibited
    by their customer base. As products mature,
    effective marketing designed to build brand
    equity becomes all the more critical.
  • http//www.biotactics.com/Newsletter/v1i1/Brand2.h
    tm

10
1961 Coca Cola original vintage advertisement.
Features a Valentine's Day
11
The Value of Brands
  • Global Brand Scoreboard
  • 1. Coca-cola 67.52 billion
  • 2. Microsoft 59.95 billion
  • 3. IBM 53.37 billion
  • 4. GE 46.99 billion
  • 5. Intel 35.58 billion
  • (German survey January 17, 2006)

12
Branding As An Internal Competency In Pharma
  • We are focusing on branding because it adds value
    to the organization. Schwarz Pharma is a company
    with an emerging pipeline that will drive our
    future. If each aspect of our organization does
    their part to help us properly brand and position
    these products, we will be able to leverage
    opportunity into market value.
  • My best advice is to take branding seriously
    because it adds great value not only to your
    products, but also to your company. We are not
    just talking about improving the bottom line, we
    are talking about a direct impact on shareholder
    value. I have seen the difference in company
    valuation between pharmaceutical firms that have
    built solid brands and those who have not. This
    is too important not to treat as a strategic
    issue.
  • Thomas J. Willard, Vice President, Marketing,
    Schwarz Pharma Inc.,

13
Naming Drugs
  • Chemical Name Nomenclature rules of the
    International Union of Pure and Applied Chemistry
    (IUPAC).
  • Nonproprietary Name Official nonproprietary
    names given by national and international
    nomenclature bodies. Jointly with the World
    Health Organizations (WHO) International
    Nonproprietary Name (INN) Committee
    (PARACETAMOL)
  • Established Name found in the official (e.g.,
    The United States Pharmacopeia) or given by the
    regulatory agency
  • Proprietary Name Trademark (CROCIN)
  • Trivial Name coined for convenience such as ASA
    (acetylsalicylic acid), HCTZ (hydro- Drug
    chlorthiazide), or AZT (azidothymidine).
  • Pharmacy Equivalent Name (PEN) primarily
    recommended for combination products, for
    example, Co-triamterpharzide is a representation
    of the Combination of triamterene and
    hydrochlorothiazide.

14
Paracetamol
  • Crocin Other common brand names for it include
    Tylenol in the US and Canada, Panadol in the UK,
    Tachipirina and Efferalgan in Italy, Crocin in
    India, Gelocatil in Spain, Alvedon in Sweden,
    Panodil in Denmark and Iceland and Depon in
    Greece.
  • IUPAC Name
  • N-(4-hydroxyphenyl)ethanamide
  • Chemical Formula
  • C8H9NO2

15
A Typical Primary Display Panel
16
Brand Awareness in the Life Science Market
  • With fierce competition, industry consolidation
    and rapid technological changes, establishing a
    strong brand identity in the life sciences
    marketplace is more critical than ever. Designed
    to help you understand the role brand perceptions
    play in a scientist's decision to choose one
    supplier over another, this study examines the
    following ten product categories in one report
    (pdf)  
  • Cell Biology Kits Reagents
  • Cell Culture Media Reagents
  • Chromatography Products Supplies
  • Electrophoresis Products Supplies
  • High Throughput Screening Analysis Systems
  • Immunology Kits Reagents
  • Molecular Biology Kits Reagents
  • Protein Kits Reagents
  • Scanners, Visualization Image Analysis Systems
  • Sequencing Equipment Instrumentation  
  • Over 2,000 life scientists responded to our
    detailed questionnaire regarding their
    perceptions of the market's leaders and what
    drives their purchase decisions.
  • http//www.bioportfolio.com/reports/Brand20Awaren
    ess20in20the20Life20Science20Market.htm

17
Brand EngineersThe Positioning Agency
  • Brand Engineers focuses exclusively on
    developing and validating highly focused and
    differentiated positioning for new and existing
    Brands in the pharmaceutical and biotechnology
    industries, with a particular emphasis in
    specialty care.
  • http//www.brandengineers.com/about.html

18
  • Medibrand is a collaboration of Creative Group
    Members Branding Strategists Life Sciences
    Marketing Professionals Attorneys/Legal
    Research staff and Medical Consultants.
  • http//www.medibrand.com/

19
Branding Drugs for a Market of One
  • It becomes apparent that pharmacogenomics,
    somehow, will change the usual marketing rules.
  • How do you brand the same drug for three
    different diseases? Do you create three different
    identities (like GlaxoSmithKline has done for
    bupropion, which is branded as Wellbutrin for
    depression and Zyban for smoking cessation) or
    have a single, super brand?
  • "Branding will be more difficult because
    companies won't have the patient population to
    support heavy advertising," argued Nathan Dowden,
    a managing partner with the Frankel Group.
    However, he conceded that strong branding for
    smaller populations is not impossible and points
    to Gleevec, Novartis' cancer drug as an example.
  • Gleevec treats a subset of people with leukemia
    who have white bloods cells with a particular
    chromosome abnormality, easily identified with a
    microscope. The drug targets the genetic
    mechanism caused by the abnormality that leads to
    cancer. Since its launch, it has been highly
    successful. Every physician knows that if a
    leukemia patient has the Philadelphia chromosome,
    he needs Gleevec.
  • http//www.brandchannel.com/features_effect.asp?pf
    _id131

20
WHAT IS A TRADEMARK?
  • Any sign, or any combination of signs, capable of
    distinguishing the goods or services of one
    undertaking from those of other undertakings,
    shall be capable of constituting a trademark.
  • Words including personal names, letters,
    numerals, figurative elements (logos),
    combination of colors, sounds, smells, etc
  • Visually perceptible 2D or 3D (shape)

21
GUIDE on TRADEMARKS
22
Brand/Trademark
  • Trademark Legal concept
  • Brand Marketing concept
  • Registration of a brand adds value as it protects
    its other inherent assets
  • Brand profile and positioning may vary over time,
    but trademark protection remains the same

23
Value of Strong Brand
  • A Strong Brand brings with it the opportunity to
    raise the profile of a product and the company
    that sells it, setting them apart from rivals in
    the marketplace.

24
Value of Strong Brand Contd...
  • A Strong Brand can also command a price premium
    for its producer, and can reduce the price
    elasticity, that is, soften consumer reaction to
    price increase/change

25
Brand Equity (IBEF)
  • Brand equity is defined as the customers'
    perception of a brand's value, and is generally
    considered to be composed of five major
    elements
  • Brand awareness
  • Brand loyalty
  • Competitive advantage
  • Perceived quality/Value
  • Brand association

26
Brand Identity
  • Mind share (cognitive level)
  • Heart Share (Emotional relationship)
  • Buying intention share
  • Self share (self-expression and self-design)
  • Legend Share (cultural-sociological proposition
    legendary mythological)

27
Corporate Image, Product Positioning and Brand
Equity
  • TRUST and RELATIONSHIPS are the bulwark of any
    enterprise, be it big or small, with a global or
    local ambit, having a traditional or modern
    management style, high tech or low tech, leader
    or follower, and irrespective of it being a part
    of the old world of brick and mortar or a
    rising star reliant on e-commerce
  • Credence Goods

28
Brand Strategy
  • In recent years, the most successful
    pharmaceutical companies have been distinguished
    as much by their marketing clout as their
    scientific innovation. The growing importance of
    creating strong brands, supported by focused
    marketing plans, have prompted many
    pharmaceutical companies to adopt business plans
    that allocate more resources to brand building.
  • This competitive new business environment means
    increased risk - the launch of a lifestyle drug
    supported by direct-to-consumer advertising can
    cost hundreds of millions of dollars, with most
    of the cash spent before patients have even paid
    for their prescription.

29
Auquisition of brands
  • Alliance Pharmaceuticals, a privately owned
    specialty pharmaceutical company based in
    Chippenham, UK, is one of the companies that
    successfully saw this opening from start of
    trading in July 1998, Alliance now has 23
    acquired brands, with turnover of around 10
    million. The company specializes in acquiring
    brands in a range of therapeutic areas, which
    would benefit from some additional TLC, or have
    become surplus as the result of a merger. Andrew
    Dean, Business Development Director, describes
    this as repairing and polishing the family
    silver.
  • The process of acquisition of established brands
    can involve developing new indications or doses,
    or simply improving supply and updating
    paperwork. An example of the development of new
    uses is amantadine originally launched as
    Symmetrel for Parkinsons disease, Alliance is
    extending its use in Parkinsons disease and as
    an antiviral (Lysovir) for use in influenza.
    Alliance is the primary supplier of oxytocin in
    the UK, and supplies Nu-Seals (enteric-coated
    aspirin), one of the biggest brands in Ireland,
    for cardiovascular indications. Its most recent
    agreement was with Lilly for Nu-Seals other
    partners include Procter Gamble and Novartis.
    Investors and collaborators include well-known
    companies such as KPMG, Eversheds and the Bank of
    Scotland.
  • Established brand acquisition favors products
    which will otherwise fall by the wayside these
    can provide good cash flow, which in turn both
    funds future development and gives investor and
    licensor companies confidence, Mr Dean said.

30
Advancis Pharmaceutical Acquires Keflex Brand
From Lilly
  • GERMANTOWN, Md., July 1 /PRNewswire-FirstCall/ --
    Advancis Pharmaceutical Corporation (Nasdaq
    AVNC), a pharmaceutical company focused on
    developing and commercializing novel
    anti-infective products, today announced it has
    acquired the U.S. rights to the Keflex(R) brand
    of cephalexin from Eli Lilly and Company (Lilly)
    (NYSE LLY). Under the terms of the agreement,
    Advancis paid Lilly 11 million for the exclusive
    rights to manufacture, market and sell Keflex
    (cephalexin capsules, USP) in the United States.
    With the acquisition, Advancis acquires Keflex
    trademarks, technology, and new drug applications
    (NDAs) supporting the approval of Keflex.
  • Following a transition period, Advancis will
    assume product inventory and begin marketing and
    distributing the Keflex brand. Cephalexin is the
    third most prescribed outpatient antibiotic in
    the United States, with over 24 million
    prescriptions written and sales of 140 million
    in 2003. Keflex is the most-recognized brand of
    cephalexin in the United States with more than 15
    million prescriptions written each year. Although
    the majority of these prescriptions are
    substituted with generic cephalexin, Lilly's
    Keflex net sales in 2003 were approximately 4
    million. First introduced in the 1970s, Keflex is
    most commonly prescribed for skin and skin
    structure infections. In addition to assuming
    sales and marketing responsibilities for Keflex,
    Advancis expects to begin clinical development of
    an enhanced cephalexin utilizing Advancis'
    proprietary once-a-day pulsatile dosing
    technology called PULSYS(TM).

31
Trust is to Business What Trademark is to Brand
  • Brand Equity built on the foundation of a
    protected Trademark
  • Brand/Trademark can
  • (a) be disposed off separately from other
    company assets (Free-standing Institutions) and
  • (b) give rights that can be legally protected

32
Centrality of Knowledge
  • KNOWLEDGE underpins PERFORMANCE

33
But...
  • Wolfgang Stofer, Director of BMWs Treasury
    Department
  • Whenever the technology becomes commoditized, we
    buy it from third parties.

34
Role of Brands For the Company
  • In a highly competitive world where manufacturers
    are losing their pricing power, branding is seen
    as a way of clawing back some of the lost
    influence.

35
Role of Brands For the Company
  • Real and marketable asset
  • Higher profit margin (Price Premium)
  • Incremental cash flow
  • Reduces cash flow sustainability risk

36
Role of Brands For the Company
  • Accelerates speed of cash flow
  • Increases bonding and customer loyalty
  • Increased market share
  • Entry barrier
  • Limits growth of competitors

37
Role of Brands For the Company
  • Requires lower investment levels
  • Better negotiating position with trade and
    other suppliers
  • Facilitates higher product availability
    (better distribution coverage)
  • Dealers order what customers explicitly request

38
Role of Brands For the Company
  • Extends products life cycle
  • Allows lower cost brand extensions
  • Can be the basis for international expansion
  • Provides legal protection
  • Licensing Franchising Merchandising
  • Buffer to survive market or product problems

39
Role of Brands For the Company
  • Value of Brands is a key determinant of
    enterprise value and stock market capitalization
  • Financial markets reward consistently focussed
    brand strategies
  • Brand management a vital ingredient for success
    in corporate strategy

40
But...
  • Brand Building Requires Time and Money
  • Brand Nourishing Should be a Continuous Process
  • Higher Profile/Exposure, Greater its
    Vulnerability
  • Can be Target of Counterfeiting/Criminal
    Activities

41
Time required...
  • It took seven years of marketing before car
    buyers began to recognize that the BMW brand was
    distinctive Jorg Zintzmeyer, board member of
    Interbrand, p 33 of FORBES Global, July 22, 2002
    in The best-driven brand by Nigel Hollway

42
So...
  • The cost of building a brand can be very
    substantial over a period of time. That is why
    buying a brand sometimes makes sense to many
    companies.

43
Creating/Designing a Trademark
  • Inherently distinctive
  • Easy to memorize and pronounce
  • Fit the product or image of the business
  • No legal restrictions
  • Positive connotation

44
USING A TRADEMARK IN ADVERTISING
  • Shall be used exactly as registered
  • Protect TM from becoming generic
  • Set apart from surrounding text
  • Specify font, size, placement and colors
  • Use as an adjective not as noun or verb
  • Not plural, possessive or abbreviated form
  • Use a trademark notice in advertising and
    labeling
  • Monitor authorized users of the mark
  • Review portfolio of trademarks
  • An evolving trademark

45
USING A TM ON THE INTERNET
  • Use of TM on internet may raise controversial
    legal problems
  • Conflict between trademarks and domain
    names(internet addresses) - cyber squatting
  • WIPO procedure for domain name dispute
    (http//arbiter.wipo.int.domains)

46
USING A TRADEMARK AS A BUSINESS ASSET
  • Licensing owner retains ownership and agrees to
    the use of the TM by other companies in exchange
    of royalties gt licensing agreement (business
    expansion/diversification)
  • Franchising licensing of a TM central to
    franchising agreement.The franchiser allows
    franchisee to use his way of doing business (TM,
    know-how, customer service, s/w, shop decoration,
    etc)
  • Selling/assigning TM to another company (merger
    acquisitions/raising of cash)

47
COMMON MISTAKESofHigh Technology Industries
  • Promote their Brands based on a list of
    features or attributes

48
COMMON MISTAKESof High Technology Industries
contd..
  • Tend to think of Brand as a TECHNICAL FEATURE

49
Brand Companies
  • Nike...
  • Adidas...
  • Reebok...
  • Levi-Strauss
  • Own No Factories

50
Proactive Protection Program (1)
  • Trademark Search/Investigation
  • Domain Name Investigation/Internet Search
  • Counterfeiting Investigation
  • Grey Market Investigation
  • Market Evaluation

51
Proactive Protection Program (2)
  • Market Evaluation
  • Factory/License audits
  • Consumer Agency Audit
  • Human Rights Audit

52
Value of Strong Brand Contd...
  • A Strong Brand can reduce the risk that new
    product launches will flop and can be used as a
    platform for successful brand stretching
    (including launching a completely new product
    segments or sector)

53
AJI-NO-MOTO
  • In 1908, Professor Kikunae Ikeda identified the
    source of the flavor of kelp, a common ingredient
    in Japanese food, as glutamic acid (monosodium
    glutamate or MSG), which is naturally present at
    high levels in kelp, tomatoes and parmesan
    cheese.
  • Professor Ikeda discovered that soup stocks made
    from kelp contained high levels of this
    substance, a discovery forming the foundation of
    a major industry producing MSG from seaweed.
  • It was introduced onto the market the following
    year under the brand AJI-NO-MOTO.

54
Trademarks
Vivalis
55
  • The Company is developing Sulonex (sulodexide
    oral gelcap), previously referred to as KRX-101,
    as a treatment for diabetic nephropathy, a
    long-term complication of diabetes in which the
    kidneys are progressively damaged.
  • Sulonex belongs to a proposed new class of
    nephroprotective, or kidney protecting, drugs,
    known as the glycosaminoglycans.

56
  • The CoroWise line of plant sterols can be
    incorporated into a variety of food and beverage
    applications. Plant sterols are an important
    functional food ingredient and are eligible for
    an approved FDA heart health claim.  

57
  • The Oliggo-Fiber range of natural soluble
    fibers, extracted from chicory roots, have a
    number of health and functional benefits. In
    particular, this range of natural fibers may help
    to promote bone health by boosting calcium
    absorption.
  • Oliggo-Fiber may also promote a healthy
    digestive system by stimulating the growth of
    beneficial bifidobacteria. 

58
  • Our new proprietary technology for producing
    Prolísse soy protein isolate has created a
    bland-flavored isolate that creates
    better-tasting products compared to other
    isolates on the market.  

59
Accelerating Health Innovation
  • Cargill HFT collaborates with customers to
    create sophisticated food solutions demanded by
    consumers. Our world class ingredient brands
    create distinct value and marketplace
    differentiation while addressing customer
    concerns regarding
  • Heart Health Joint Bone Health Health
    Wellness

60
  • Aminogen
  • Aminogen, a vital ingredient in high-quality
    protein supplements, is clinically proven to
    increase amino acid levels and boost nitrogen
    retention. Developed by Triarco Industries,
    Aminogen is a patented, designer enzyme which
    breaks down protein and improves amino acid
    absorption.
  • A natural, plant-derived enzyme, Aminogen is
    ideal for increasing lean body mass and strength
    and promoting deep muscle recovery. And Aminogen
    does all this while supporting protein digestion
    and reducing or eliminating the gas, bloating and
    constipation protein can sometimes cause.
  • Get more out of your protein and get bigger,
    strongerfaster with Aminogen.
  • Demand Your Aminogen!

61
  • Please select one logo and click to get more
    information about our brands.
  •   
  • This web page mentions filed and/or registered
    trademarks of the company. However, the absence
    of an according designation by or TM should be
    regarded as not effecting the legal status of any
    of those trademarks and can not be interpreted as
    not existing trademark rights.

http//www.bioactives.de/bioactives/html/e/product
s/brands/brands.htm
62
Successful Ingredient Brands
  • Most successful ingredient brands have used a
    symbol such as
  • the Nutrasweet swirl and
  • the Dolby double D

63
Ingredient brands
  • ADM www.admhealth.comCargill
    www.cargillnutraceuticals.comDegussa
    www.bioactives.deDuPont Protein Technologies
    www.dupont.comInter-Cal www.esterc.com/index2.ht
    mlKemin www.kemin.comMartek
    www.martekbio.comsigma-tau www.biosintcarnitines
    .comTriarco www.triarco.comWennstrom
    www.wennstrom-integrated.com

64
Is Collective Branding the Answer?
  • ISHS Acta Horticulturae 570 VIII International
    Symposium on Flowerbulbs BENEFIT SHARING FROM
    FLOWERING BULB - IS IT STILL POSSIBLE?
  • Author   J.H. CoetzeeKeywords   benefit
    sharing, genetic resources, indigenous bulbous
    plants, Southern AfricaAbstract Genetic
    material from Africa, but more specifically from
    Southern Africa, was used to develop a large
    number of the world's most popular cut flowers
    and other ornamental plants. The most well known
    bulbous plants originating from genetic material
    from Southern Africa are Agapanthus, Amaryllis,
    Begonia, Clivia, Freesia, Gladiolus, Ixia,
    Nerine, Ornithogalum, Sandersonia, Watsonia and
    Zantedeschia. Two of the ten best sellers on the
    Dutch flower auctions in 1999 were originally
    developed out of genetic material from South
    Africa namely Gerbera and Freesia. A total of
    143 million was earned from the sale of these two
    products on the Dutch auctions. A general
    statement can be made that the Netherlands earns
    more from South African flowers than South Africa
    earns from its gold. Does a mechanism exist
    whereby African countries can share in the
    profits from indigenous genetic material? Is the
    concept of benefit sharing viable for ornamental
    bulbous plants? According to the clauses of the
    Convention on Bio-diversity (CBD) it is
    theoretically possible, but in practice it is
    fraught with difficulties. The main reason why
    benefit sharing is not an option is that all the
    best bulbous genetic material has, for centuries
    been in the public domain. The original
    custodians of the genetic material cannot claim
    ownership according to the international
    treaties. Benefit sharing in the form of
    intellectual property rights is only possible if
    genetic material is improved to cultivar level
    through breeding and selection. In most African
    countries the necessary expertise and research
    funds do not exist to develop cultivars on which
    plant breeder's rights or patents can be
    registered. The only realistic option for benefit
    sharing is to go into agreements with
    international organizations. An alternative is to
    promote cultivation of indigenous bulbs that can
    be exported as cut flowers or bulbs from the
    country of origin. This humble approach gives the
    lawful owners a small share in the financial
    benefit.

65
Is Collective Branding the Answer?
  • ISHS Acta Horticulturae 630 XXVI International
    Horticultural Congress Nursery Crops
    Development, Evaluation, Production and Use
    SUSTAINABLE TRADE IN ORNAMENTAL HORTICULTURE
  • Author   B. JørgensenKeywords   Fair trade,
    benefit sharing, new ornamental plantsAbstract
    A large proportion of ornamental potted plants
    produced in developed countries are based on
    import of plant material from less developed
    countries, and most "potted plant species"
    originate in less developed countries. There are,
    however, an increasing awareness and concern
    about the intellectual property rights on native
    plant species and about economic sustainability
    at the grower and, particularly, at consumer
    level. Sustainable or "fair trade" is an
    alternative approach to conventional
    international trade. It is a trading partnership
    which aims at sustainable development for
    disadvantaged producers. Fair trade is well
    established within a range of edible
    horticultural products (coffee, tea and cocoa)
    and has been adapted to a range of other products
    but, as yet, not to ornamental horticultural
    products. It is obvious that fair trade, if
    adapted to ornamental horticulture, will not only
    create a whole new product line but may also
    create a new niche in the global potted plant
    market. Ornamental horticulture is an industry
    with great job opportunities and with a great
    potential for generating much needed export
    income. It is, however, difficult for small and
    medium sized businesses in developing countries
    to enter the export market for horticultural
    products, especially because the demands to the
    transport chain are high for horticultural
    products. It is evident that fair trade of
    ornamental plants will be a viable and
    sustainable business on a longer term, but this
    will require training and education and increased
    research into the practical aspects of plant
    export and reestablishment.

66
  • Origin function
  • allows identification of the enterprise offering
    a good or service
  • Functions of Marks
  • Quality function
  • consumers associate certain quality with a mark
  • encourages the holder to maintain the quality
    standard

Art. 15(1) TRIPS capable of distinguishing
the goods or services of one undertaking from
those of other undertakings
  • Communication function
  • can become a carrier of additional information
  • mark image

67
What is a Collective Mark?
  • Individual mark

holder individual person focus on the
enterprise as the source of the good or
service
  • Collective mark

holder association focus on the good or service
geographical origin
other characteristics
specific nature
specific quality
68
  • Montréal InVivo Metro Montréal Life Sciences
    Cluster adopts a branding strategy to better meet
    international competition Montréal, March 30,
    2005 Metropolitan Montréals life sciences
    cluster is adopting an international branding
    strategy in order to take its rightful place
    among sector leaders. The clusters name,
    Montréal InVivo, and logo were unveiled as a
    headliner at the launch of the Biomedex forum
    this morning in Montréal.
  • The branding strategy, developed under the
    stewardship of the Metropolitan Montréal Life
    Sciences Committee (MMLSC), is part of a
    concerted effort to strengthen the clusters
    positioning among local and foreign investors and
    increase its attractiveness to researchers and
    venture capital specialists.

69
What is a Certification Mark?
  • Certification mark

holder control institution focus on specific
characteristics
  • specific functions
  • distinction function?
  • guarantee function
  • securing quality
  • informing consumers
  • control concerning
  • geographical origin
  • production process
  • specific nature
  • other characteristics

70
ExamplesOrigin
71
ExamplesGeographical Origin
72
ExamplesNature
73
ExamplesQuality
74
Collective MarksWhat are the different forms of
use?
  • use by the members of the association
  • use by the association itself
  • use by both the association and its members
  • use by third parties
  • use by third parties as well as the association
    and/or its members

75
Collective Mark Regulations - for what purposes?
  • internal relations
  • clarifying the relationship between the
    association and its members
  • clarifying the relationship of members to each
    other
  • external relations
  • informing the public about the association and
    its members
  • ensuring transparency as to the conditions of use
    of the collective mark

76
Collective MarksRegulations - what contents?
  • association
  • name and headquarters
  • purpose
  • representation
  • membership
  • requirements
  • obligatory admission?
  • use authorization
  • criteria
  • all members?
  • third parties?
  • conditions of use
  • term
  • form
  • nature of goods/services
  • quality standard
  • specific region?

77
Collective MarksIs a change in ownership
possible?
  • in principle not precluded
  • same organizational structure required
  • collective mark association
  • certification mark control institution
  • changes to the regulations?
  • conditions of use to be observed
  • quality standard
  • nature of goods/services

78
ConclusionBusiness approach to individual and
collective marks
  • Individual marks
  • full direct control
  • reflects goodwill of an individual enterprise
  • subject of direct investment
  • becomes individual asset of an enterprise
  • no limits to assignment and licensing
  • Collective marks
  • no direct control
  • forms rather an additional marketing instrument
  • not necessarily subject of direct investment
  • useful starting point when setting up a business
  • specific rules for assignment and licensing

79
Certification Marks
  • Example VIDALIA for onions
  • The certification mark is intended to be used
    by persons authorized by certifier, and will
    certify that the goods in connection with which
    it is used are yellow Granex type onions and are
    grown by authorized growers within the Vidalia
    onion production area in Georgia as defined in
    the Georgia Vidalia Onion Act of 1986.

80
Certification Mark v. Collective Mark
  • Certification Mark
  • Generally used by trade associations or other
    commercial groups to identify a particular type
    of goods.
  • e.g. UV - Ultra-Violet protection for
    sunglasses Intel Inside.
  • Serve to certify conformity with centralized
    standards.
  • Meant to bear the seal of approval of a central
    organization.
  • Collective Mark
  • Used only by members of an organization to
    identify goods or services and distinguish them
    from those of nonmembers.
  • The collective itself does not sell goods or
    perform services.
  • Sole purpose is to indicate membership.

81
The Case of ROQUEFORT CHEESE
  • Some aspects of the cheese-making process used in
    the Roquefort district are protected as trade
    secrets

82
Importance of GIs
  • GIs provide added value to our producers. French
    GI cheeses are sold at a premium of 2 euro.
    Italian Toscano oil is sold at a premium of 20
    since it has been registered as a GI in 1998.
    Many of these products whose names are protected,
    are exported. 85 of French wine exports use GIs.
    80 of EU exported spirits use GIs. GIs are the
    lifeline for 138000 farms in France and 300000
    Italian employees. Trade Issues, EU Commission,
  • 30 July 2003 http//europa.eu.int/
  • comm/trade/issues/sectoral/
  • intell_property/argu_en.htm

83
Trademarks and Geographic Indications
  • The rights to control trademarks and geographic
    indications can be maintained in perpetuity, and
    they do not confer a monopoly right over the use
    of certain information, but simply limit the
    class of people who can use a certain symbol.

84
Importance of GIs for TK
  • Geographic indications are based upon collective
    traditions and a collective decision-making
    process they protect and reward traditions while
    allowing evolution they emphasize the
    relationships between human cultures and their
    local land and environment and they are not
    freely transferable from one owner to another
    and they can be maintained as long as the
    collective tradition is maintained.

85
GIs and the Community
  • Geographical indications lend themselves better
    to communal organization than do other IPRs.
  • A producer qualifies to use a geographical
    indication according to its location and method
    of production.
  • It is immaterial whether the producer is an
    individual, family, partnership, corporation,
    voluntary association or municipal corporation.
  • Typically, the producers based in the relevant
    region work cooperatively to establish, maintain
    and enforce guidelines for production of the good
    subject to the geographical indication.

86
  • The Roquefort Societe des Caves was established
    in 1842, a company formed by local producers, and
    it registered
  • a distinctive oval trade mark in 1863.

87
Protected Appellation of Origin
  • The French Government, in 1924, gave formal
    recognition to the term Roquefort as a
    protected appellation of origin (a form of
    geographical indication). Similar protection has
    been gained overseas. For example, the Community
    of Roquefort registered the word Roquefort as a
    certification trade mark for cheese in the United
    States in 1952, with the condition that
  • THE CERTIFICATION MARK IS USED UPON THE GOODS TO
    INDICATE THAT THE SAME HAS BEEN MANUFACTURED FROM
    SHEEP'S MILK ONLY, AND HAS BEEN CURED IN THE
    NATURAL CAVES OF THE COMMUNITY OF ROQUEFORT,
    DEPARTMENT OF AVEYRON, FRANCE.

88
Geographical Indication
A geographical indication is an indication which
identifies a good as originating in the territory
of a Member, or a region or locality in that
territory, where a given quality, reputation or
other characteristic of the good is essentially
attributable to its geographical
origin. (TRIPS-Agreement)
89
Council Regulation (EEC) No. 2081/92
(Scope limited to certain agricultural products
for which a link between product or foodstuff
characteristics and geographical origin exists)
Protected Designation of Origin (PDO)
Protected Geographical Indication (PGI)
Product must beproduced andprocessed
andpreparedin geographical area
Product must beproduced orprocessed
orpreparedin geographical area
90
PDO/PGI registrations under Reg. (EEC) No.
2081/92 (cheeses)
total 154 (2004)
91
PDO / PGIShare of cheese production
92
German GI cheeses
  • Allgäuer Bergkäse
  • Allgäuer Emmentaler
  • Altenburger Ziegenkäse
  • OdenwälderFrühstückskäse

93
Generic Cheeses
Emmental, Cheddar, Gouda, Edam, Camembert, Brie,
Provolone, Mozzarella... Feta (C-465/02),
Parmesan (C-132/05)
94
GIs in India
  • Geographical Indication of Goods (Registration
    and Protection) Act, adopted in 2000
  • Examples of Geographical Indications in India
    Darjeeling Tea, Kanchipuram Silk Saree, Alphonso
    Mango, Nagpur Orange, Kolhapuri Chappal, Bikaneri
    Bhujia, etc

95
Peru seeks geographical indication protection for
Pisco in India
  • This is the first such application filed by a
    foreign country after the GI Registry started
    receiving applications in September 2003. The
    Registry has issued the examination report and
    the application is in an advanced stage of
    prosecution.
  • A product or good can claim protection as a GI in
    another country only after securing protection in
    the country of its origin. Pisco has secured GI
    protection not only in Peru but also in a few
    Latin American countries.
  • Peruvian national pride Pisco, a clear, strong,
    aromatic brandy distilled from fermented black
    grapes of Quebranta variety, derives its name
    from the 'Pisco Valley' and now known as the city
    of Pisco, 300 km to the south of Peru's capital
    Lima from where it has been produced since the
    16th Century. Its name also comes from the port
    town of Pisco from where it has been shipped to
    markets worldwide. Pisco has been a part of
    Peruvian culture for over 400 years and its
    production has been passed from generation to
    generation and is a ritual in many families.

96
Indian geographical indication "Darjeeling" being
misused by tea from Nepal
  • Tea grown in Nepal is reportedly being passed
    off in Indian markets as "Darjeeling" tea which
    takes its name from the sub-Himalayan district in
    the east Indian state of West Bengal.
    "Darjeeling" tea is protected as a certification
    mark and may be applied to the tea variety grown
    in the aforesaid  geographical region
    only.Nepalese varieties are similar in
    appearance to Darjeeling tea and have some of the
    flavour too, as they too are grown in
    sub-Himalayan regions. However, the mark
    "Darjeeling" and logo can be used only by tea
    that has been purely grown in the Darjeeling
    district.Tea from Nepal is freely importable
    into India after the payment of the necessary
    import duty. 90 per cent of the 97 privately
    owned tea gardens in Nepal are owned by Indian
    businessmen.
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