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BRAZIL: Amazonian ‘Chocolate’ Free of Japanese Patent

Mario Osava

RIO DE JANEIRO, Feb 11 2004 (IPS) - Brazil was able neutralise the attempt by a Japanese firm to claim a patent for processing cupuaçú, an Amazon fruit belonging to the same family as cacao. But the battle continues on the trademark front.

The Japan Patent Office denied Asahi Foods the patent for processing cupuaçú seeds into a chocolate-like product.

The refusal was based on the principle of anteriority, given that the Brazilian governmental agricultural research agency, Embrapa, had sought an international patent for the process in 1999, Mónica Cibele Amancio, an Embrapa attorney, told IPS.

The Japanese intellectual property authorities officially communicated the decision to Embrapa last month.

But another obstacle stands in the way of Brazil’s free use of this natural resource which is autochthonous to its territory. The same Asahi Foods registered the indigenous Brazilian name "cupuaçú" as its own trademark with the appropriate agencies in Japan, Europe and the United States.

The company, based in Kyoto, Japan, even set up a subsidiary named "Cupuacu International, Inc."

Brazilian producers of jellies and sweets made from the fruit were told by German importers that they had to remove the word "cupuaçú" from the product labels because it was trademarked and belonged to the Japanese firm.

A group of non-governmental organisations is working with the Amazon communities that make cupuaçú products to have the registration annulled under the international principle that a proper name of a natural species cannot be trademarked.

Brazil’s foreign ministry is also participating in the petition to cancel the Japanese trademark, officially filed in April 2003, and a response is expected from Japan this April, says Eugenio Pantoja, lawyer for Amazonlink, an NGO that supports sustainable development in the Amazon.

Meanwhile, the Amazonian producers have either halted exports of cupuaçú products or are selling them with no name or under other names, and this has affected community development programmes based on sustainable use of local natural resources, Pantoja told IPS.

It was not until relatively recently that cupuaçú, a fruit much larger than its cousin cacao, began to conquer markets outside of the Amazon region for its various products. Traditionally, only the pulp was used in making ice cream, juice, sweets and jellies.

Its seeds were considered waste, and only some were saved for planting more cupuaçú trees.

Fátima Ribeiro de Nazaré, an Embrapa researcher for more than three decades, had the idea to put the discarded seeds to some use. Indeed, the seeds had begun to accumulate with the rising consumption of products made from the fruit.

Of course, she told IPS, it was obvious: if the cacao seed is used to make chocolate, the big cupuaçú seed should be raw material for the same product, given that the two plants belong to the same family, though are different species.

It was a matter of "making some adjustments" and adapting the process to produce something close to chocolate, Nazaré explained. Her research at Embrapa’s Eastern Amazon Centre, based in the Amazonian city of Belém, finally produced the desired results in the late 1980s.

The processing of the cupuaçú seed produces a butter and a cake-like substance, raw materials for a final product that, for legal reasons of protection of cacao production, cannot be called "chocolate", she said. The hybrid name "cupulate" thus emerged.

The butter is used to make white cupulate, and both raw materials are used in producing the "dark" and "milk" versions of this "not chocolate".

The procedures for obtaining the Brazilian patent for the cupuaçú product concluded just 11 months ago. Embrapa asked the National Industrial Property Institute to reserve the cupulate patent in 1990, but backed down in 1997. Embrapa took up the issue again, and the patent was registered in March 2003.

Now that the debate on the cupuaçú processing patent has been resolved in the international arena, efforts can begin to promote the product and look for investors from the chocolate industry. Embrapa is not involved in those activities, but can be part of technology transfer and will charge intellectual property royalties, said attorney Amancio.

Once the process had been developed, an Amazon-based company began producing cupulate, but went bankrupt immediately, says Nazaré. Now that the road has been cleared, the media attention to the cupuaçú patent disputes could help towards market insertion.

The cupuaçú case has become emblematic of the fight against biopiracy, which is the appropriation of biological resources through patent or trademark rights, especially by foreign companies.

The Brazilian movement against biopiracy seeks recognition and protection of the traditional knowledge held by indigenous communities or local peoples so that they are the beneficiaries of commercial use of the Amazon’s vast biological diversity.

‘Andiroba’, ‘açaí’, ‘copaíba’ and ‘pau rosa’ are other Amazon plant species used as in making foods, medicines, energy supplements, cosmetics and perfumes. Interest in them is on the rise, and so is the threat of undue appropriation by private groups.