Geographical Indications (GI’s)
Introduction | Registered SA GIs | EU-SADC Economic Partnership Agreement | New Applications
A Geographical Indication (GI) is defined as follows in Article 22 of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), set out in Annex 1C to the World Trade Organisation Agreement adopted at Marrakesh on 15 April 1994:
“Geographical indications are, for the purposes of this Agreement, indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.”
Article 6A of the Agricultural Product Standards Act, 1990 (APS Act) provides as follows for the use of geographical indications:
6A. Prohibition and exemption on use of names –
(1) The Minister may, notwithstanding any other agricultural laws relating to a specific product and taking into account the Republic's international obligations, by notice in the Gazette, prohibit the use of specified geographical or other names, or terms in connection with the sale or export of a specified product, on such conditions as may be specified in such notice.
(2) A prohibition issued under subsection (1) shall also apply where the geographical name in question -
(a) is used in connection with an indication of the true origin of the product in question;
(b) is used in translation; or
(c) is used together with words such as "kind", "type", "style", "imitation" or similar words or expressions.
On 22 March 2019, the Department (DAFF) published new Regulations relating to the Protection of Geographical Indications used on Agricultural Products intended for sale in the Republic of South Africa (No. R.447 dated 22 March 2019).
Regulation R.447 applies to the use of registered Geographical Indications on agricultural products falling within the scope of the APS Act only, and that are intended for sale in the Republic of South Africa. The regulations furthermore take into account international agreements regarding the protection of foreign GIs in the Republic of South Africa.
B. GIs FORMING PART OF THE EU-SADC ECONOMIC PARTNERSHIP AGREEMENT
On 10 June 2016, the European Union (EU) signed an Economic Partnership Agreement (EPA) with the Southern African Development Community (SADC) Group comprising Botswana, Lesotho, Mozambique, Namibia, South Africa and Swaziland. The EPA includes, among others, a bilateral protocol between the EU and South Africa on the protection of Geographical Indications (GIs) and on trade in wines and spirits.
The GI protocol implies that the EU will protect South African names such as Rooibos, Honeybush, Karoo Meat of Origin and numerous wine names like Stellenbosch and Paarl. In return, South Africa will protect more than 250 EU GI names spread over food, wines and spirits. These foods include the GI names of various cheeses, vinegar, meat products, fresh fruits and vegetables, cereals, etc.
The South African ratification process of the EPA was concluded in Parliament on 30 August 2016 and the new agricultural market access agreement (which includes the protection of GI names) took effect on 1 November 2016.
C. PROTECTION OF GIs ORIGINATING FROM WTO MEMBER COUNTRIES
In terms of Article 22 (Protection of Geographical Indications) of the TRIPS agreement, South Africa as a member of the World Trade Organisation is expected to protect GIs originating from other member countries, even though no bilateral or multilateral treaty, convention or agreement on the protection of GIs exist between the RSA and the WTO member country(ies) concerned.
1. Auditing of registered South African GIs:
• A registered South African GI shall be subject to audits by the nominated qualified South African auditor to establish compliance with the critical elements of control.
• Audits shall be conducted at least on a biannual basis, or in accordance with the frequency as mutually agreed between the Executive Officer and the group.
• The Assignee designated for the agricultural product(s) concerned may visit members of the group and/or the qualified South African auditor nominated by such group from time-to-time.
2. Trade control of registered GIs:
• Designated Assignees shall during the course of exercising their mandate in the trade for the agricultural product(s) they were appointed, ensure that all registered South African GIs and foreign GIs, including registered foreign GIs that form part of international agreements, enjoy the necessary protection.
• The appropriate action against any transgressions found shall be introduced as permitted for under the APS Act.