Talkmore Chidede, tralac Researcher, discusses geographical indications used by South Africa and their protection under the EU-SADC EPA

Geographical indications (GIs) are unique names/signs by which a product is identified as originating from a particular geographical location. GIs describe a product as having certain qualities, characteristics or reputation which are exclusively or essentially associated to a specific geographical origin. For example, Robertson is used to describe wine of Robertson town of origin (Robertson wine), champagne connotes sparkling wine from the champagne region of France, and Rooibos tea refers to a specific herbal tea from the Western Cape, South Africa. The legal protection of GIs is important to preserve the value of local products and ensure that the local producers receive the benefits associated with product quality. GIs are also intended to protect consumers against misrepresentation as to the actual origin of the product.

The Economic Partnership Agreement (EPA) between the European Union (EU) and the Southern African Development Community (SADC) Group,[1] includes a bilateral protocol[2] between South Africa and the EU on the protection of GIs and on trade in wines and spirits. The Protocol has been provisionally applied since 1 November 2016, and is open for accession to Botswana, Lesotho, Namibia, Swaziland or Mozambique upon application to the Special Committee on GIs. The Protocol replaces the 2002 Agreements on Trade in Wine and on Trade in Spirits signed between the EU and South Africa.

A Special Committee on GIs – comprising EU and South Africa representatives – has been established to ensure implementation of the Protocol including monitoring parties’ cooperation, exchanging information, product specifications, and amend the Protocol. Any dispute that may arise on issues covered by the Protocol (GIs), will be settled via consultation, mediation or arbitration.[3]

Which products are covered?

In the Protocol, South Africa committed to protect 251 GI names of the EU: 105 agricultural products and foodstuffs (including mainly fruits, vegetables, cereals, cheeses, meat and fisheries products);[4] 5 beers;[5] 120 wines;[6] and 21 spirits.[7] The EU will protect 105 GI names of South Africa: 3 agricultural products and foodstuffs (Honeybush tea, Rooibos tea and Karoo lamp); and 102 wines (see examples below). These GIs are protected against any direct or indirect commercial use of the name, any misuse, imitation or recreation, any other false or misleading indication as to the origin, nature or essential qualities of a like product, any misleading to consumers as to the true origin of a like product.[8] This means that South African producers with GI names protected under the Protocol will have exclusive right to use these names in the EU market. For example, no EU producer will be allowed to market/produce a tea under the name Rooibos.

South African producers or producers with stocks of products, produced or branded with a product name now listed in the EU’s GI register, will be able to market such products for a period of 3 years from 1 November 2016; and retailers will be able to market the products until the stock is exhausted.[9]

Examples of South Africa wine GIs protected in the EPA

Eastern Cape Northern Cape Western Cape KwaZulu Natal Limpopo Paarl Stellenbosch Riebeekberg

Banghoek Boberg Bonnievale Bottelary Breedekloof Buffeljags Bamboo Bay Bottelary

Cape Agulhas Cape Point Cape South Coast Ceres Plateau Coastal Region Constantia Durbanville Wellington

Elandskloof Elim Elgin Franschhoek Goudini Greyton Groenekloof Napier

Hout Bay Klaasvoogds Klein Karoo Klein River Koekenaap Lamberts Bay Malgas Malmesbury

Sutherland-Karoo Swartberg Tygerberg Robertson Prince Albert Valley Philadelphia Worcester

South Africa’s existing producers of Feta Cheese can continue to use the name on their label indefinitely. But new entrants to the Feta cheese market must seek approval of the EU authorities. Similarly, GI names such as Kalamata (on olive products) and Valencia (on citrus fruits) can continue to be used by South African producers, provided consumers are not misled on the nature of such term or the exact origin of product.

South Africa has an option to add 30 more GI names provided the names do not conflict with the GIs already protected under the Protocol or mislead consumers as to the origin of the product.[10] This is an opportunity for local producers to have their GI names protected under the EPA framework. Such GIs must first be registered in accordance with relevant South African laws – for example, Trade Marks Act of 1993, Liquor Products Act 60 of 1989 or Merchandise Marks Act 17 of 1941.

In June this year, the South African Wine and Spirit Board approved new Wine of Origin District name – Cape Town.[11] This initiative aims to leverage the well-known brand ‘Cape Town’ and will cover the wine wards of Constantia, Durbanville, Philadelphia and Hout Bay under the name ‘Wine of Origin Cape Town’. Some 30 leading wine brands such as Groot Constantia, Durbanville Hills, Diemersdal, Klein Constantia, Nitida, Meerendal, Buitenverwachting and Cape Point Vineyards will be covered. This is an obvious candidate for an additional GI name; and we understand that such an application will be submitted to the Committee on GIs.

If South Africa decides to negotiate with a third party to protect GIs that have the same name as GI name(s) covered under the Protocol, the EU shall be informed and given an opportunity to comment before the name becomes protected.[12] In other words, if South Africa enters any agreement with another country to protect GIs (of that country) having similar names as to the EU GI names, the EU should be informed and approve such use and protection of the GIs.

Brexit implications

Following a referendum on 23 June 2016 which delivered a decision to leave the EU, Prime Minister Theresa on May 29 March triggered Article 50 of the EU Treaty and if the United Kingdom (UK) finally exits the EU in 2019, it will cease to be party of the EU trade agreements including the EPAs. The UK has secured protection of white/blue stilton cheese and Scotch whisky in the EPA. If, after Brexit, the UK wishes to have its GI names protected by South Africa, it must renegotiate an agreement to that effect. The UK is an important importer of South African wine and rooibos, and South Africa an important importer of scotch – an agreement on GIs may well be on the post-Brexit agenda.

Tell us what you think.

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[1] South Africa, Botswana, Lesotho, Namibia, Swaziland and Mozambique.

[2] Protocol 3 of the EU-SADC EPA.

[3] Articles 77, 78 and 79 of the EU-SADC EPA, respectively.

[4] See section B.1 of Annex I to Protocol 3. See also the Government notice on the Final prohibition on the use of certain EU names of products: SADC-EU Economic Partnership Agreement, available at https://www.tralac.org/images/docs/10734/dti-merchandise-marks-act-1941-final-prohibition-on-use-of-certain-eu-words-with-annexure-government-gazette-no-40359-21-october-2016.pdf

[5] České pivo and Českobudějovické pivo from Czech Republic as well as Bayerisches Bier, Bremer Bier and Münchener Bier from Germany. See section B.2 of Annex I to Protocol 3.

[6] See section B.3 of Annex I to Protocol 3. In the first year of implementing the EPA, 110 million litres of South African wine – 77 million litres of bottled wine and 33 million litres of bulk wine – shall enter the EU market duty-free.

[7] See section B.4 of Annex I to Protocol 3.

[8] Article 5 of Annex I to Protocol 3.

[9] Article 18 of Annex I to Protocol 3.

[10] Article 13 of Annex I to Protocol 3.

[11] http://www.wosa.co.za/Wosa-News/Press-Releases/2017/New-Wine-of-Origin-Cape-Town-Flies-Flag-for-South-African-Wine-Industry/

[12] Article 5.4 of Annex I to Protocol 3.