Karoo lamb, rooibos tea, Bapsfontein…What’s in a name?
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25 Jun 2019
On 22 March 2019, the Minister of Agriculture, Forestry and Fisheries published regulations to the Agricultural Product Standards Act (1990) relating to the registration and protection of geographical indicators (GIs) used in respect of agricultural products intended for sale in South Africa.
Albeit an interesting context for purposes of this discussion, Juliet might have had a noble point to make in willing her love, Romeo, to simply be called by another name when she said:
“O, be some other name!” What’s in a name? That which we call a rose by any other name would smell as sweet
Juliet is arguably guilty of a serious oversimplification of their ‘issues’ here, what with her falling in love so quickly and agreeing to drink untested substances and then waking up literally a minute too late… She raises an important point, though: What’s in a name? Well, in the 21st century context of international trade, the commercialisation of names and indicators and luxury brands, a rose by any other name may not smell as sweet.
A geographical indicator (or GI) is a name that identifies an agricultural product (i) as originating from a certain territory or locality in such territory, and (ii) whose qualities or other characteristics are essentially attributable to such territory. The international protection of GIs, amongst other things, was established by the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), set out in the World Trade Organisation Agreement (1994).
Internationally, most jurisdictions require the registration (on application) of GIs. Examples of well-known European GIs (which are also synonymous with good food and drink) include “Bordeaux” wines (Bordeaux, France), “Brie” cheese (Brie, France), “Champagne” (Champagne, France), “Manchego” cheese (La Mancha region, Spain), “Cognac” (Cognac, France), “Parma” ham and “Parmesan” cheese (Parma, Italy), “Kalamata” olives (Kalamata, Greece).
South African examples of GIs protected through international protocols include “Honeybush tea” (Eastern Cape and Western Cape), “Rooibos” tea (Cedarberg area), “Karoo lamb” (Karoo region) and various wines. Until recently, South Africa did not have a registration process in place for GIs, with the effect that individuals had to rely on existing international recognition, and certain industry-specific laws and remedies available in common law to defend GIs. The position changed when, on 22 March 2019, the Minister of Agriculture, Forestry and Fisheries published regulations to the Agricultural Product Standards Act (1990) relating to the protection of GIs used in respect of agricultural products intended for sale in South Africa (Regulations). The Regulations inter alia seek to protect parties’ intellectual property rights to GIs, and to protect consumers from being misled into believing certain products to be of a certain quality or origin.
Registration of GIs can be obtained through an electronic registration process and applications are ultimately published and open to objections from the public. To register a GI, the Regulations require, amongst other things, that the relevant GI not:
- be identical to an existing (registered) GI originating from the same or similar geographical area;
- be a generic or common term (for example, ‘French’ fries, ‘Brussel’ sprouts);
- falsely communicate the origin of the relevant product to consumers;
- sound like an existing (registered) GI;
- be the same or similar to an existing trade mark used in South Africa;
- be intended to be used in translation or be accompanied by words such as “type”, “kind”, “style”, “imitation”, “method” or similar words or expressions.
The successful registration of a GI would entitle the holder thereof to include words such as “Protected Geographical Indicator”, “Registered Geographical Indicator”, “PGI”, “RGI” or “RSA-GI” on the packaging of the relevant agricultural products.
With the advent of the registration process, who knows what GIs South African agricultural entrepreneurs will seek to register. We may soon see some interesting ones. Perhaps it is time for the Bapsfontein broiler to take its rightful place!
- The benefit of intellectual property rights in agriculture
- South African Rooibos IP innovation to be presented at WIPO Congress in Geneva
- Wine labelling in South Africa
Christine Bodenstein is an Associate at Cliffe Dekker Hofmeyr's Corporate and Commercial practice. She is experienced in general M&A transaction work, including in respect of the following phases of deals: due diligence, structuring, negotiation, drafting, and implementation. She also has a substantial amount of experience in evaluating compliance with corporate governance principles and best practice, commercial law research and opinions, as well as general company secretarial work.Send a legal query to Christine Bodenstein
André de Lange is a Director at Cliffe Dekker Hofmeyr's Corporate and Commercial practice. André specialises in corporate law, corporate governance and mergers and acquisitions. He also provides general commercial law-related services and advice. For a number of years André served on the executive committee of the Johannesburg Attorneys Association, holding the office of Vice Chairman and Treasurer. André currently serves as a Councillor of the Cape Law Society and on the Audit and Risk Committee of the Law Society of South Africa. He and his family relocated from Johannesburg to Cape Town at the end of 2006.Send a legal query to André de Lange