Trade marks, country names and misappropriation of national identity Natalie GS Corthe ´sy* The significance of country names ‘Who am I?’ is the universal question that every person poses in an attempt to understand their national iden- tity and cultural DNA. There is increasing evidence of traders attempting an emotional appeal to consumers in order to elicit the purchase of goods and services based on their national pride, or promote goods and services from a foreign country because of their well- known reputation for quality. Coca-Cola’s marketing campaign in Switzerland which boasts an image of the Swiss cross on the bottle cap accompanied by the words ‘Made in Switzerland’, is a case in point. 1 When branding products with country names, the moral compass guiding the management of industrial property has been ‘Thou shalt not lie’. 2 Article 6ter of the Paris Convention 3 has clearly incorporated this per- spective by providing for the protection of national em- blems and like indicators from a heraldic point of view. As a corollary, Article 10 therein implements safeguards against unfair competition. 4 However, there is no spe- cific mention of protection of official country names. The Agreement on Trade-related aspects of Intellectual Property (TRIPS Agreement), 5 is also silent on this ques- tion but does buttress the earlier Madrid Agreement 6 on the protection to be extended to appellations of origin and geographical indications and the Lisbon Agreement for the Protection of Appellations of Origin. 7 This conundrum is illustrated in the current dispute between Iceland (the UK supermarket chain) and Iceland (the country). 8 Since registering its trade mark in the UK in 1970, Iceland (the undertaking) has successfully The author  Natalie GS Corthe ´sy is a PhD Candidate, CCLS, Queen Mary University of London; she holds and LLM (UCL) and LLB (UWI). Natalie is a Lecturer in Law, The University of the West Indies, Mona Campus, Jamaica and Attorney-at-Law qualified to practise in Jamaica. This article  Country names function like biometric data that help consumers identify not only the authenticity of the source of goods and services in the global market place, but also their perceived reputation for quality. The practice of co-branding with country names to heighten the distinctiveness of local brands, as well as their adoption as marks for unconnected goods and services has left con- sumers confused and countries disgruntled.  Historically, an unfair competition prevention approach has been adopted vis- a-vis international IP protection of official country names. This art- icle considers the extent to which broader issues of sovereignty and nation branding have not been given due credence in the debate on the legitimate use of country names in trade.  It is argued that there has been a paradigm shift in the significance of country names in international commerce, which has prompted discussion of the need for increased IP protection to embrace nation brands as a unique genus of property, rather than mere descriptors of origin or indications of quality. * Email: n.g.s.corthesy@qmul.ac.uk. 1 Coca-Cola was invented in the USA in 1886, and came to Switzerland in 1936. The company asserts that today it is the top-selling soft drink in Switzerland, possibly because 95% of the ingredients needed to make the beverage are sourced from Swiss suppliers: see Coca-Cola’s public rela- tions page on their official website in Switzerland, http://www.coke.ch/fr/ article-2/ (accessed 30 January 2017). 2 J Simon, More than banks, watches, cheese and tunnels - The new approach to the “made in” question, and why you might be concerned, Focus Europe, Lenz & Staehelin, July 2016, pp 56–57. 3 Paris Convention for the Protection of Industrial Property (adopted 20 March 1883, entered into force 3 June 1984, as amended on 28 September, 1979, (hereafter referred to as ‘Paris Convention’). 4 GHC Bodenhausen ‘Guide to the Application of the Paris Convention for the Protection of Industrial Property’, WIPO Publication No 611 (2004). 5 Adopted 15 April 1994, entered into force 1 January 1995, 1869 UNTS 299 (TRIPS Agreement). See generally C Correa Trade Related Aspects of Intellectual Property Right (Oxford University Press Oxford 2007). 6 Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods (adopted 14 April 1891, entered into force 26 April 1970 as amended on 14 July 1967 (hereafter referred to as ‘Madrid Agreement’). 7 Lisbon Agreement as amended 28 September 1979, entry into force 5 November 1983. (Stockholm Revision, 14 July 1967, as amended 28 September 1979) 923 UNTS 205. 8 See ‘Can a Brand Say “Product of Iceland”? UK Store: “No.” Iceland’s Government: “Not so fast.” ’ Trademarks þ Brands BLOG (30 September 2016), available at http://trademarksandbrands.corsearch. com/can-a-brand-say-product-of-iceland-uk-store-no.-icelands-govern ment-not-so-fast (accessed 5 February 2017). V C The Author(s) 2017. Published by Oxford University Press. All rights reserved. doi:10.1093/jiplp/jpx005 Journal of Intellectual Property Law & Practice, 2017, Vol. 12, No. 4 297 ARTICLE