South Africa – Agriculture: False and/or Misleading Trade Descriptions that are Registered as Trademarks are on the Chopping Block

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South Africa’s food, alcohol and agricultural laws all contain a similar provision prohibiting the use of false and/or misleading descriptions of the relevant commodity.  These prohibitions extend not only to descriptions that are applied to the labels of these commodities but also extends to the advertising thereof.

Under the regulatory framework, inspectors of the various government departments responsible for administering the various pieces of legislation, are called on to safeguard the interests of the consumer by ensuring that, for example, agricultural products sold in South Africa are not labelled in such a way creates a false and/or misleading impression regarding the nature, quality or composition of the agricultural product concerned.  There has, however, been a longstanding debate in South Africa as to whether or not the prohibitions contained in Section 5 of the Foodstuffs, Cosmetics and Disinfectants Act, 54 of 1972 (“the Foodstuffs Act”), Section 12 of the Liquor Products Act (“the LPA”), 60 of 1989 and Section 6 of the Agricultural Products Standards Act, 119 of 1990 (“APSA”) extends to registered trademarks and/or marks that are the subject of pending application, particularly where such marks may constitute false and/or misleading descriptions.

Although the Directorate of Food Safety Quality Assurance sought, in or about March 2021, to subrogate its responsibilities under Section 6 of APSA to the officials at the Trade Marks Registry (by advising said officials to “ignore any trade marks (either registered or in the process of being registered) that were regarded as misleading”), it is clear, from the legal opinion obtained from the Directorate:  Corporate Legal Support (a division within the DARLLD) that the ambit of Section 6 of APSA is wide enough to include trademarks and/or marks that are the subject of pending applications.  It is also plainly apparent from the legal opinion of the Directorate:  Corporate Legal Support that it is the responsibility to apply and enforce the provisions of Section 6 of APSA lie with the inspectors of the DALLRD[1].

The implications of the notice, dated 12 August 2021 and published on 24 August 2021, for the trade, are prospective in nature and empower inspectors to inspect and, inter alia, to remove from commercial settings any agricultural products that bear false and/or misleading description.  The consequence being that a registered trademark may no longer be “a way around” using a false and/or misleading trade description.

Moreover, and, while the legal opinion set out in the notice purports to provide an interpretation of Section 6 of APSA only, the effect of this opinion may spill over to foodstuffs and liquor products sold in South Africa, since the mischief that Section 6 of APSA and Sections 5 and 12 of the Foodstuffs Act and LPA (respectively) are aimed at curbing are virtually identical in their nature.

Source:  PDF attached; Notice regarding the application of Section 6 of the APS Act on misleading trademarks – 12 August 2021

[1] Department of Agriculture, Land Reform and Rural Development (https://www.dalrrd.gov.za/)