Brussels Briefing n. 31 Geography of food: reconnecting with origin in the food system 15 th May 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 Certification marks Collective marks Collective marks  Food and Consumer Protection Laws Agricultural Products Standards Act Agricultural Products Standards Act Consumer Protection Act Consumer Protection Act Foodstuffs, Cosmetics and Disinfectants 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  Consumer Protection Act – general provisions against misleading labelling

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  Lack of domestic protection – cannot apply for protection in EU

Concluding remarks  No Sui Generis system in SA  Process of protecting regional identity done via existing legislation  Combination of : Trade mark law Trade mark law Consumer Protection law Consumer Protection law Food law Food law

Concluding remarks  Karoo lamb v Rooibos experience: Need to be proactive and not reactive in protecting GIs Need to be proactive and not reactive in protecting GIs Protection in country of origin crucial to fight off international usurpation attempts 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 Cannot take a position of relying on state action- industries need to take responsibility for protecting their collective IP