Brussels Briefing n. 31
Geography of food: reconnecting with origin in the food
system
15th May 2013
http://brusselsbriefings.net
Overview of origin-linked agricultural products and
initiatives of interest to ACP countries
Johann Kirsten, University of Pretoria
Approaches to the preservation and
protection of the identity linked to origin of
agri-food products: The South African
experience
Cerkia Bramley and Johann Kirsten
Department of Agricultural Economics, Extension and Rural
Development at the University of Pretoria
Protection of GIs in developing
countries

Various developing countries have introduced legal
protection to recognise and protect the cultural and
commercial value of indigenous resources.
• Some have chosen sui generis systems and others followed
US approach of protection under trade mark laws.
Well known protected developing country GIs
 India – Basmati rice
 Ceylon tea – Sri Lanka
 Tequila – Mexico
But why protect GIs?

GIs the result of a process whereby collective reputation
is institutionalised in order to solve problems that arise
from information asymmetry and free riding on
reputation.

This highlights a fundamental feature of geographical
indications protection in that it functions as both:


Consumer protection measure (through addressing
information asymmetries and quality) and
Producer protection measure (through its role in
protecting reputation as an asset)
But why protect GIs?

The economic rationale for protecting GIs further derives
from the fact that the resources of the region may be
captured in the origin labelled product as quality
attributes (Pacciani et al, 2001).

Added value derived from this leads to a differentiation
based on product “qualities” and consequently to the
creation of niche markets.

Could potentially lead to capturing a price premium and
improved livelihoods.
Geographical indications in South Africa

In contrast to some European countries, SA does not have a
long history of protecting GIs.

So is this a concept that is applicable to the South African
context?

Need for GI protection initially arose from SA experience of
usurpation of reputation of well known origin based products.
Near loss of IP in name Rooibos

US trade mark dispute highlighted the potential threat to the
industry’s legal rights in the name Rooibos.




Rooibos registered as a trade mark in the US
Effectively prevented the marketing of Rooibos products under
Rooibos name in the US
Costly 10 year legal battle to expunge TM registration
Near loss highlighted the need for local industries to be proactive in
protecting their cultural property rights and served as catalyst for
move towards incorporation of collective IP strategies in the
industry.
Misappropriation of the name
“Karoo”

Strong evocative value of ‘Karoo” has significant
marketing potential which should be used to benefit of
Karoo community.

But commercial value of the name “Karoo” has led to
widespread misappropriation.

Search of TM register indicates that the name is being
appropriated by various individuals and businesses .

Major retailers designed marketing strategies for lamb
around use of name “Karoo”.
Legal Mechanisms for
protecting GIs in South Africa
 IP


Law
Certification marks
Collective marks
 Food



and Consumer Protection Laws
Agricultural Products Standards Act
Consumer Protection Act
Foodstuffs, Cosmetics and Disinfectants Act
Protecting the regional identity
of Karoo Lamb
 Trade
mark system: Certification mark
 Registered
protocol under Agricultural
Products Standards Act
Protecting the regional identity
of Karoo Lamb
 R146-
FCD Act: unlawful to use the words
Karoo Lamb in the labelling and
advertising of foodstuffs, unless it is done
in terms of a protocol or specific regulation
Protection Act – general
provisions against misleading labelling
 Consumer
Protecting Rooibos
 Considerable
preparatory work for
registration of certification mark
 Industry
failed to complete the process in
SA – approach of waiting for Government
to take action
of domestic protection – cannot apply
for protection in EU
 Lack
Concluding remarks
 No
Sui Generis system in SA
 Process
of protecting regional identity
done via existing legislation
 Combination



of :
Trade mark law
Consumer Protection law
Food law
Concluding remarks
 Karoo



lamb v Rooibos experience:
Need to be proactive and not reactive in
protecting GIs
Protection in country of origin crucial to fight
off international usurpation attempts
Cannot take a position of relying on state
action- industries need to take responsibility
for protecting their collective IP