WIPOD – Page Points: Transcript of Episode 23

Intellectual Property and Cannabis

Natalie Corthésy

Branding is everything. I think that the recognition of source of origin and country names, how country names function as national competitive identity is absolutely crucial. There are so many different manufacturers, producers of cannabis products around the world, that I think the idea that one needs to be able to distinguish products one from the other, to distinguish components of the products based upon source of origin, one from the other, have become increasingly important as a tool.

Lise McLeod

Hello, Page Points listeners. Today with us, we have Natalie Corthésy, who is one of the editors of the book entitled Intellectual Property and Cannabis, which was published in 2025 by Edward Elgar Publishing.

Welcome to the podcast, Natalie.

Natalie Corthésy

Thank you so much for inviting me on, Lise. This is just wonderful. It's nice to know that there is this wonderful repository that's being created at WIPO. I think it's a great idea. So kudos to you for conceptualizing it.

Lise McLeod

It's my honor indeed. Let’s jump right in with my first question.

What issues did you see in the global cannabis discussion that made an interdisciplinary book on IP and cannabis necessary at this moment in time?

Natalie Corthésy

Well Lise, the economics of the cannabis market appear to have been constructed, I would say, within global parameters. And so consequently, the trade became increasingly affected by IP rights, whether it was copyright, trademarks, designs, patents, plant varieties, as traders sought to compete internationally.

I think also that in the socio-cultural context of the cannabis market, it seemed to have shifted from this taint of illegality towards acceptance, and I would say also a proliferation of the product globally, creating a need for regulations related to packaging and use of trademarks, unfair competition relative to indication of origin and of course personality rights. And I would also add the historical underpinnings, you know, the resulting traditional knowledge transfer and impact on indigenous markets regarding the cannabis market.

Lise McLeod

Intellectual property is described as a tool for emerging cannabis markets. In practical terms, how does IP function as part of the market infrastructure rather than just forming its legal protection?

Natalie Corthésy

I would say, Lise, that the key word here is branding. Branding is everything. I think that the recognition of source of origin and how country names function as national competitive identity is absolutely crucial. There are so many different manufacturers, producers of cannabis products around the world, that I think the idea that one needs to be able to distinguish products one from the other, to distinguish components of the products based upon source of origin, one from the other, have become increasingly important as a tool.

People want to turn over that product and have the question answered, “Where is this product coming from and can I rely on the quality of the product that I am buying?”. And that is in large measure, not just to the type of product, but to what's inside. It comes back to asking yourself the question, does, for example, Canada enjoy national competitive identity for cannabis products? And the answer would be yes. And you could ask that question, I think, of any country. And so you really want to bring the spotlight on branding. You want to trust the products that you purchase when it comes to cannabis because of, I guess, I could use the word genre. You have a certain genre of products in relation to cannabis.

So if you were talking about medicinal genre from perhaps pain relievers to eye drops to, you know, there's a wide variety of products in the medicinal genre, but you do want to be able to trust it, so branding becomes king. I would also say that for consumer protection as a corollary, safeguarding against unfair competition and by extension, trying to safeguard against counterfeits. This is huge. It's not unusual that cannabis products are sold in a way that you can't examine the product with the naked eye. Or rather the makeup of the product you're buying is not necessarily readily discernible by examining the product, so the packaging for consumer protection is absolutely important.

Furthermore, I would say that it's an important tool of acknowledgement. It can and should serve as a tool to acknowledge traditional knowledge and traditional cultural expressions to the extent that cannabis has in many cultures been used not just recreationally, but for other religious and spiritual purposes and that there are attendant concerns beyond cannabis in the strict sense of a medicinal product. It's much more than that.

Lise McLeod

Some of the chapters of the book point to first mover advantages for enterprises in developed economies. In your opinion Natalie, what would a more development-oriented cannabis IP system look like for countries in developing economies?

Natalie Corthésy

This is an excellent question Lise because there is at present still not a global consensus on the legal status of the trade of cannabis. There is no international accord for the decriminalization of cannabis. And so the categorization of cannabis as a particular type of drug and as it relates to international treaties on prohibited drugs and trade in drugs, cannabis has been tainted by this categorization.

And whilst it is true to say that there has been a shift, a significant shift away from treating cannabis as one would, quote unquote “hard drugs”, the stigma certainly remains and as a result there are still many jurisdictions that meet very severe punishment for cannabis production and consumption.

Therefore, I would say that looking forward in order to grapple with this issue one would need an international multilateral agreement on the decriminalization of cannabis. I can't state with any certainty what that would look like, but certainly an internationally acceptable minimum standard of what decriminalization should look like in the legislative framework.

Secondly, I would say to help local production do all aspects of manufacture, including branding in global south, rather than exporting on branded raw materials. So certainly there are two spheres. In the first, you've got developing economies that are producers of cannabis as a raw material. And then you have another sphere, where in these first world countries, say, or more developed economies, you've got the registration of the plant varieties that are much easier to achieve. You've got the registration of patents that are more easy to achieve. And then, of course, you've got the finances to do the branding where the added value actually happens. So there is this cavern between the two spheres where I argue that developing economies will struggle to sustain the production of cannabis if it's continued to be treated as simply a raw material unimproved by IP assets and in particular branding.

So in this forward looking dispensation, there would be room for those developing economies to reap the benefits of significant investment to do everything in that jurisdiction rather than finding itself in a position where they produce the raw material and then end up buying back the finished product and importing it back into the country from a developed country that is doing the branding.

And so I think another advantage is certainly going to be an increase in the registration of geographical indications. This is very, very important. It is an allied argument to the one I've just advanced wherein, if developing economies can establish that the cannabis that they're growing and producing meets the criteria for registration of a GI.

Well, it's no secret. A GI registration simply means you can get more money for what you're selling. And so I think it would be very much worthwhile to envisage a future where we will see for the very first time anywhere, really, the registration of a GI for cannabis, because at the moment, no country has managed to register a GI for cannabis.

We have our eyes, we're on the lookout to see who's going to be first past the post.

Lise McLeod

How do you think IP law could best recognize and protect traditional knowledge and cultural expressions like Rastafari cannabis heritage?

Natalie Corthésy

Well, Lise, I will zone in on Jamaica, if that's okay with you, since you've mentioned Rastafari. Jamaican law actually has included in its legislative framework protection for Rastafari in relation to cannabis. And the law simply says, we acknowledge the Rastafarian community and their use of the plant as a sacrament. And in so far as the Rastafarian community uses the plant as a sacrament, they do not fall a foul of the law. This is permitted on the law by the Rastafarian community. So we do recognize, I would say, the use of cannabis in this way.

There is, however, a sticky matter. Or maybe you could say it's a little bit fuzzy. In that, the law also recognizes production of the plant for use in the medicinal industry. And in particular, in its scientific classification as cannabis, which is related to its THC content.

Now, regrettably, it is the traditional form of the plant which we refer to as ganja. Ganja is typically what the Rastafarian community would be growing and what traditional farmers, whether they're Rastafarians or not, traditionally what persons grow is ganja. And so there is a struggle. It has been said that Rastafarians and other farmers who plant ganja have found themselves being raided by the authorities for growing the plants in a manner that does not meet the legal requirement to be grown legally. And they have found themselves using their crops and so on. And so, I describe this as a fuzzy situation. Jamaica, in fact, enjoys a national competitive identity for Ganja.

The introduction of the legislation to allow for the production of cannabis is therefore a new market as opposed to the traditional market for ganja and this cultural idea of Rastafari and by extension Reggae, Jamaica's nation brand is heavily tied into Rasta, Reggae and ganja. And so here it is that we have tried to offer protection on the one hand, but on the other it seems that the parameter is such that the two cannot comfortably exist. They cannot comfortably coexist side by side.

But I would say that some protection is permissible. And I would add that the Trademarks Act and the Patent and Designs Act in Jamaica, both pieces of legislation have been recently amended to include protection for the use of Rastafari in any registrations. They have to be consulted. So for example, if you wanted to register a trademark with any Rasta-related content, you would have to submit to the registrar of trademarks proof that you had consulted for the use, but most importantly, anything that is derogatory will be refused. That is a grounds for refusing registration of the mark.

And so a real effort has been made to offer a level of protection to these traditional knowledge holders in intellectual property generally and in relation to use of cannabis by Rastafari in particular. But it's fuzzy because it didn't go wide. It took a very targeted approach to how that framework would be established.

Lise McLeod

Now with neutral packaging and morality-based refusals in some jurisdictions, how is it suggested that cannabis brands still communicate trust, quality, and origin to their consumers?

Natalie Corthésy

Well, I think tobacco has figured it out. They had a rough ride, but they figured it out. I have to think that cannabis will figure it out as well. And certainly I have observed that globally there has been a trend towards using well-known person's images, their images to sell cannabis products. And not just globally, even here in Jamaica, we've seen it too with Marley Natural. So, Bob Marley's image rights have been used to sell cannabis products. But there are other examples of other well-known persons as well. And we certainly examined this pointedly in one of our chapters, which was written by Emma Perot.

I feel that Cannabis-infused beverages also don't seem to be having an issue. So just, you know, a mundane visit to a supermarket in Jamaica and you will see a surprising number of, well for me surprising, a surprising number of new products on the shelf in the section with beers right alongside the alcoholic beverages. You will now have beverages that are infused with cannabis.

And there seems to be a trend among the younger generation of consumers shifting away from alcohol and shifting towards cannabis-infused beverages. So I think the market is going to respond to what the consumers want. Also, I would add that stigma and marketing are two sides of the same coin. And with the stigma dwindling, and the marketing intensifying, I believe the matter will resolve quite naturally in the course of trade.

Lise McLeod

In the book, Jamaica features as a Geographical Indications case study. What makes cannabis especially well suited, or uniquely difficult, for geographical indication protection?

Natalie Corthésy

I say that it's the stigma of the illegality and the threat of trade backlash, both of which would fall squarely under the discretion of political will. Policy would have to drive any change. Now, for policy to drive the change, it has to be prompted by a lobby. It would require a lobby. Do the producers of cannabis or ganja in Jamaica have a vested interest in registering a GI for say, Jamaica cannabis? Jamaica hemp? Jamaica ganja? The answer is yes, but who would the champion be? Who would spearhead it? Who would own it? Who would control it? Who would certify it? So there are quite a number of complicated questions to which there's no clear answer. There is a cannabis licensing authority, which is within the government's responsibility and the Cannabis Licensing Authority is but one stakeholder. Their primary responsibility is to have oversight of the legal cannabis trade. And this is very, very different in function from cannabis farmers or ganja farmers for that matter.

And so, I think the struggle is with finding a public-sector-private sector partnership that could redound to the geographical indication becoming a reality. I think this sort of fuzzy artificial classification of cannabis versus ganja would have to be resolved. I also believe that there is the advantage, the natural advantage that Jamaica has in its nation brand and the recognition of our nation brand for rasta, reggae and related cannabis or ganja use. And so the nation brand umbrella can seamlessly incorporate, and I would say elevate a registered geographic indication if it were registered or even non-registered. But if the nomenclature of that GI incorporated the country name, so the GI I believe should be Jamaica cannabis and Jamaica ganja and Jamaica hemp. Whoever might be minded to spearhead it, my advice would certainly be take advantage of that national competitive identity and include the country named Jamaica as part of that nomenclature, provided of course, that it would be possible given the legal requirements for the registration of a GI. And I believe this must be possible. If I make a comparison with Jamaica rum, which is a registered GI, they have been able to identify the geographic location to expand beyond the Appleton region, which is rather small.

But by reference to the limestone deposits and other characteristics, they have extended it and created an appropriate and acceptable description, specification for Jamaica rum. And I believe the same is possible for Jamaica ganja or Jamaica cannabis. Areas in West Malone in particular, St. Elizabeth, there are areas that could be quite easily mirror the process that was used to identify the actual geographic location and to come up with a specification that would be appropriate. So in sum, I would say it's about who controls the market, the local market, and smoothing over the strained relationship between public sector and private sector. Identifying the champion who would advance the cause for the registration of the GI.

Lise McLeod

From the case studies, including Jamaica, Canada, Uruguay, and the Netherlands, would you like to highlight any of those regulatory models as balancing innovation, public health, and social equity?

Natalie Corthésy

Well, as already mentioned in relation to Jamaica, I think that the protection of the Rasta sacrament is manifest of an intention to bring about some social equity, ensuring that the community is not disenfranchised of something that they do by way of religious practices. And I suppose one could even make a humanitarian argument in support of the stance that the government has taken and recognizing freedom of religion.

I would say that in relation to public health, the requirement for labeling is key. We've seen in certain jurisdictions where there is prohibition about using colorful packaging that would, can I use the word ensnare? Tempt younger consumers into purchasing cannabis products unknowingly because they're so attractive and bright and colorful in the way that candy and other products destined for the child market might present themselves. So labeling has been absolutely critical for markets that do have these products. Labeling has been important also for the adult market because cannabis products are required where they're legally sold to indicate the THC content. So the persons who are using it as part of a medicinal regimen, they're aware of just how much active ingredient they're getting in the product that they're consuming. So labeling as it regards to content, but labeling also by way of the physical appearance of the product itself to avoid the product being purchased and consumed by a younger market, that would be of course undesirable and greatly problematic for the public.

I would also say that as it regards innovation, the registration of plant varieties is quite an important thing. And I think that it would be good to see more countries coming on board to incorporate protection of plant varieties in their respective jurisdictions. And I think also the idea of sustainability of these varieties is a critical question.

What comes to mind is also benefit-sharing. I think about the case in the Caribbean region where another island had a volcanic eruption and lost quite a bit of their vegetation and of course their cannabis production was affected and the government of Jamaica donated seeds. And that's interesting because they were able to rebuild their cannabis production from this donation. But how does that impact Jamaica if we're thinking about this seed donation as an IP asset? Can we then say that this particular plant variety or strain that results is something that you can only now find in Jamaica? Well, that would no longer be true. So it's interesting. It's interesting how you can benefit from the sharing, but how important it is to ensure that proper, let's call it contractual arrangements or treaty arrangements would need to be enforced to manage a process like that.

And I would also say that it really isn't any different from any other agricultural product. You need a seed bank. You know, especially where you consider a small state like Jamaica, where there's a huge market for importation of agricultural products. Some of the products that would have been here naturally or grown here locally, they become fragile and subject to a number of any hazards from biohazards to hurricanes and things that could affect the crops. And so you constantly have to think, or at least have in the back of your mind, what happens if I lose my crops? How do I restart my manufacturing and production?

The generosity of another island? That's wishful thinking. I think we were very generous. We might not do it again. But certainly a seed bank, if you were able to, through your own methods and creativity, innovate a strain, then registering the strain is important. Securing the seed for sustainability, exceptionally important.

Lise McLeod

I can see how the seeds would be very important. The book explores how cannabis regulation and IP systems can reflect existing power structures in the global economy. In your view, how can IP frameworks be designed to promote fairness and inclusive participation in post-prohibition cannabis markets?

Natalie Corthésy

This is a difficult question because I think it's more a question about trade agreements than it is about intellectual property. And the chapter written by Bryan Khan is particularly instructive. I confess it's one of my favorites. I'm not sure I'm supposed to say that, but, it was particularly provocative on this point. And I suppose my response would be treat cannabis like any other consumer product that has a positive and a negative side effect.

If we extract the stigma, cannabis isn't very different from alcohol, isn't very different from tobacco, isn't very different from sugar when you consider the international problem we now face with obesity. So the question is, I believe having a neutral approach to cannabis rather than one that is focused on criminalization. I think there's definitely a need to shift away from this myth that the consumption of cannabis primarily promotes laziness and non-productivity. I think that the science has made clear that the plant is a multifunctional plant that can be used to treat glaucoma, that can be used in treatment for cancer, that can be used for pain relief and a number of other ailments and that by...Can I use the word demonizing?

Demonizing the plant, it doesn't bring about any positive results. It certainly doesn't dissuade persons from consuming it and whatever for. So I believe that what it requires is to treat it in the way you would treat any other medicinal product. The same would be true for morphine; the same would be true for any product really that could give you a good and a bad two sides of the same coin. Is it that you need to ensure that consumption of a particular dose, in a particular form, this needs only to be done under medical supervision and we've seen this.

So persons who are cancer patients, if they have a prescription, they can present themselves to a dispensary with the prescription. And most importantly, then the dispensary can control the dose. So this is helpful. I remember many, many years ago, Switzerland was quite ahead in the game in this regard, where you were only allowed to present your prescription, I think, no more than once a month and no more than the size of a pillow or something like this. It had some crazy sort of funny way in which the dispensary would determine whether or not to fill your prescription. And I remember laughing to myself and thinking, boy, this is really funny.

But the truth is that whilst you will have consumers who need and who would desire this sort of framework where relying on the expertise of the doctor, relying on the expertise of the dispensary, they could consume it and enjoy the benefit of this medicinal option to whatever the ailment is.

There will always be another set of consumers who are much more discerning, who want to know that they're consuming a particular kind of variety of the plant with perhaps an increased THC from a specific region, because then we're talking about flavors, we're talking about patina. You know, it's a very, very...quality determined product and people have a particular palette, consumers have a particular palette for their consumption.

If we think about Morocco, the book does speak about this when it talks about strains and the desirability of Moroccan hash and the Moroccan market. I mean, they're absolutely well known for the quality of what they produce. But again, that's for a particular set of consumers who have a particular thing that they want to achieve in their experience in the consumption.

And in this sense, it's not any different from whisky. If you are a whiskey lover, then you're not going to drink just any whisky. You want to know which particular producer it's coming from, not just that it's coming from Scotland, you know, it's where in Scotland, which producer you want to drill it down. And we've seen it also with sparkling wine, the time old, age old example of, you could almost describe it as the Champagne Wars. It's not champagne, it's prosecco. Well, it's not champagne, you know, it is kava. But really, it's sparkling wine. How does cannabis elevate the market to this level in a legal way? That's the question.

Lise McLeod

Well Natalie, I would like to thank you for joining us today and more importantly for contributing to the body of literature. I believe that the book is the first of its kind on intellectual property and cannabis.  I would like to congratulate you and your co-editors in such a comprehensive work.

Natalie Corthésy

Thank you so much, Lise. I've totally enjoyed this conversation with you. And it's been my privilege to share about the book. Thank you very much for taking time out to have this discussion.

Lise McLeod

I hope that you enjoyed meeting Natalie and that your interest is piqued to check out the book.  More information is available via the publisher’s website and we have a copy in our knowledge repository.

Until next time, and the next Page Points, bye for now!