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Securing the Spirit of the Pacific: The Bid to Protect Kava as Intellectual Property


Pacific Island nations are moving forward with a strategic initiative to protect kava as intellectual property by introducing a Geographical Indication (GI) marker. This initiative aims to certify kava as a uniquely Pacific product, reflecting its special role in the region's culture and economy, especially in nations like Vanuatu, Tonga, and Fiji, where it plays a crucial role in daily life and as a key export.


The move towards implementing a GI for kava arises from the increasing global demand and subsequent production outside the traditional Pacific regions, including in the United States. This burgeoning international interest is seen as an opportunity for Pacific nations to capitalize on kava's reputed relaxing and stress-relieving properties, enhancing its market value and ensuring consumer trust in its authenticity.


Kava plant
Kava leaves

Global context of Geographical Indication protections


The efforts by Pacific Island nations to protect kava as a geographically indicated product reflect a wider trend where regions seek to safeguard culturally significant products from misappropriation and unfair commercial exploitation. You can look at a local supermarket shelf to see the story of GI markers played out in real life. Products such as champagne are famous for having strict GI protections attaching to their sale, with other similar products not from the Champagne region being sold under the “sparkling wine” label. Similarly, the European Union is currently attempting to tie a GI marker for feta cheese to the commencement of both the Australia-EU and NZ-EU free trade agreements. [1]  These attempts have been met with objection from Australian and New Zealander cheese producers.[2] 


The main challenge that arises in GI marker cases is recognition by other states in international trade agreements or otherwise. This issue is compounded by the fact that the plant, scientifically known as piper methysticum universally known as “kava", complicating efforts to brand regional variants.


Similar cases concerning the geographic protection of commonly traded goods have failed to receive recognition by the World Trade Organization (WTO). For example, in 2002 the WTO Appellate Body 2002 found that the EU could not impose a GI marker on sardines as this was merely the common name for a species of fish, sardinops sagax sagax”.[3]


Previous cases in the Pacific


Despite the difficulties faced by some producers in establishing GI for their products, two recent cases illustrate the precedence for such measures in a Pacific context, and a way forward avoiding the need for an international agreement or WTO recognition:


  1. French Research Institute Agreement: In 2019, the French Research Institute for Development agreed to share the benefits derived from its patent after facing accusations of biopiracy involving the native Pacific shrub, pandanus tectorius. This shrub, traditionally used by Pacific Islanders, became the subject of controversy when the institute patented extracts without consulting indigenous groups. Following backlash, the institute agreed to renegotiate terms and share profits with local communities. This example sets a precedent for the ethical handling of intellectual property rights, emphasizing the need to respect and fairly compensate indigenous groups who are the original stewards of traditional knowledge.[4]

  2. Christan Dior's Agreement with New Caledonia: French luxury brand Christian Dior reached a secret agreement with the New Caledonian government after allegedly using the scent of endemic plants from the island in its perfume without proper consultation or compensation. This deal demonstrated a recognition of the need to engage with local stakeholders and seek permission when using indigenous resources. The agreement not only showcased the importance of respecting the intellectual property associated with traditional knowledge but also highlighted the significance of fair benefit-sharing mechanisms.[5]


These examples underline the importance of regional collaboration, equitable benefit-sharing practices and engagement with the private sector, reinforcing the need for Pacific Island nations to establish and enforce clear standards around kava production and branding. Implementing a GI marker for kava could help protect its authenticity and cultural heritage while ensuring that any international use is ethically aligned with the interests of the communities that have traditionally grown and consumed it.


 

[2] M Huysmans, “On Feta and Fetta: Protecting EU geographical indications in Australia” (2021) 73(2) Journal of Agricultural Economics 598.

[3] Appellate Body Report, European Communities - Trade Description of Sardines, WT/DS231/AB/R (26 September 2002).

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