Geographical Indications: Are They on the Map in South Africa?

A geographical indication is defined in the TRIPS Agreement as an indicator that identifies a particular product as originating from a particular region or locality, where a given quality, reputation or other characteristic of the product is essentially attributable to its geographical origin. Examples of such indications are Champagne, Tequila, Karoo Lamb and Rooibos.

These indications inform the consumer that the product being purchased was grown or produced in a particular region and, as such, possesses certain qualities unique to the relevant locale.  Rooibos, a proudly South African example, informs the consumer that the agricultural product has been grown in the Cederberg in the Western Cape, according to an identified standard, whilst Champagne informs the consumer that alcoholic beverage so labelled originates from the Champagne region, in France, according to an identified standard.

In addition to the protection afforded to geographical indications under the TRIPS Agreement, an international register and registration process was established under the Lisbon Agreement.  As Mexico is, for example, a signatory of the Lisbon Agreement, Tequila is registered as a geographical indication.  However, as only 30 countries are signatories of the Lisbon Agreement, its reach its relatively limited.  More particularly, South Africa is not a signatory of the Lisbon Agreement and, as such, a registration secured thereunder, would have no force or effect in South Africa.

That is not to say, however, that Tequila can be used by South African distillers of Agave Tequilana Weber (the plant from which Tequila is made).  In order to give effect to our obligations under the TRIPS Agreement, domestic legislation relating to the labelling of foodstuffs, liquor and agricultural products, seeks to prohibit the misuse use of geographical indications.  As such, our liquor laws recognise that no person shall use the word Tequila, unless such use is in compliance with the official Mexican standard.

In an attempt to protect geographical indications further, including local geographical indications, the Regulations Relating to the Protection of Geographical Indications Used on Agricultural Products Intended for Sale in the Republic of South Africa (“the GI Regulations”) were published on 22 March 2019.

The GI Regulations, which came into effect in or about September 2019, establish both a register and a registration process and it is now possible to submit an application to register both local and foreign geographical indicators as geographical indications in South Africa.

The GI Regulations set out the minimum requirements for registration and also establish an opposition procedure, which applies in respect of both applications for both foreign and local indicators of geographical origin.  Although the acceptance of the application to register Karoo Lamb as a geographical indication was published for opposition purposes, no indicators have, as yet, been entered on the register.  Bearing in mind that the GI Regulations have not yet been in force for a year, it will be interesting to how this space will develop in the future.

Nicole Haworth
Senior Associate | Trade Mark Attorney