Background

International agricultural trade is characterized by increased competition between emerging countries in lucrative markets in developed countries. The intensification of this competition involves quality and price, as well as greater product differentiation. The latter is aimed at differentiating products from those of competitors, to position themselves in more profitable market segments and to secure and enhance market share.
 
One measure available to producers/exporters of agricultural products is Geographical Indications (GIs); making it possible to link the quality and reputation of a particular product to a given place or territory. GIs allow for differentiation and a way of enhancing value, as well as protecting the names of agricultural products and foodstuffs. The Agreement on Trade-related aspects of Intellectual Property Rights (TRIPS) allows for both agricultural related and non agricultural GIs (Articles 22-24).

GIs have been widely used in the EU and EFTA markets; more than 3 000 GI’s are registered with the European Commission alone. About 1 200 GI’s are registered in France, mostly for wine and spirits (Art. 23 of the TRIPS). Italy is the country with the second most registered GIs and Germany is a close third. Many of these GIs protect regional or national markets in the context of free trade in the EU.

However, GI’s can become a powerful protectionist tool and may force trading partners to abolish century old brand names. This happened in the Trade and Development Cooperation Agreement (TDCA) between South Africa and the EU. This issue has not yet been fully resolved and is still on the agenda of TDCA discussions. It involves mostly wine, spirits and dairy GIs that have been registered in the European Union.

Conference

The seminar in Montpellier was organised by CTA and supported by the French government. I attended on invitation. The seminar was further attended by about 35 delegates from ACP countries; from Samoa to Belize. The legal and operational requirements of GIs were explained by French experts with wide ranging experience in GIs.

No ACP country has yet been able to register a GI in her own state and – consequently – not in an export country. Legal and operational requirements have been under preparation for the last 8 year, especially in West African countries. This has been supported by a number of French organisations, but without any success yet.

The legal framework

The legal issues with respect to GIs pertain to different levels. On the multilateral level the matter is governed by the TRIPS Agreement. Individual states are free to establish there own GI regimes and then the basic requirements are:

• At producer level, the organisation of producers of a specific product in a specific region (terroir) is a prerequisite for the registration of a product as a GI.

• Uniformity and quality are the next steps that have to be developed and the necessary certification bodies have to be established.

• National legislation for GIs is necessary. (In France this is effected by a decree – does not have to go to Parliament)

• After implementation, the GI then has to be registered and acknowledged in the export destination, with the necessary implementation of accreditation and quality control on national level.

• Then the GI of a product (agricultural or industrial) is protected in the relevant export market and the name is protected. This name may then not be used for a like or the same product, produced in the country of export.

The further multilateral refinement of GIs is still a matter of discussion. Within the EU there is a rather sophisticated GI regime in place but the multilateral extension of the EU approach is a controversial matter. GIs are often addressed in free trade agreements such as the TDCA. Developing countries (and the ACP in particular) are faced by there own challenges in respect of domestic GI regimes as well as securing protection for their products when negotiating FTAs such as the EPAs.

The Southern African position

When South Africa signed the TDCA with the EU, it acknowledged the GI’s in place in the EU, and that these names of EU GI dairy products are not to be used any longer in the South African market. That gave raise to new brand names such as Simonzola etc. The issue of GIs in the wine and spirit market has not yet been resolved and South Africa is still negotiating for an acceptable solution for appellations such as brandy and whisky for South African products.

In WTO negotiations on TRIPS and Agricultural Agreements, South Africa ( and Namibia) has supported the position of the USA; not to acknowledge the protection that the EU wants for GIs in the USA. However, SA is – at least partially – bound by TDCA.

South Africa is – on private sector level – currently investigating the possibility to obtain a GI for Rooibos Tea, but this is in an investigation stage.

Namibia has long ago (and as a member of the Lisbon Convention for the protection of trademarks) registered the SWAKARA trade mark for all Karakul pelts exported from Namibia, South Africa and Botswana to auctions in European Union markets. The SWAKARA trademarks are registered in the most important export destinations and have to be re-registered from time to time at a moderate cost.

The question of creating a GI for SWAKARA pelts was discussed extensively. It will be very difficult for the Karakul industry to obtain legal GI status, because production takes place in several countries and GIs can be lawfully implemented only on a national level through national legislation. The creation of a supranational GI for all three production countries seems at this stage highly unlikely.

For the foreseeable future, a well introduced and acknowledged trademark will secure enough protection for the SWAKARA karakul industry. The same argument applies to the second consideration offered by Namibia as a candidate for discussion: The Kalahari Melon Seed Oil proposal. The same problem and shortcomings are found here; the melon under consideration is growing wild in Botswana and Namibia.

Summary

Although it is acknowledged that GIs can make a beneficial contribution to protect the identity of a product and thus can contribute to the development of the indigenous population which is dependent on the harvesting and processing of these products, the geographical regionality which is the basis of a GI is not available for the two Namibian products presented at the seminar.

The position of South Africa and Namibia in the multinational negotiations at WTO level will also have to be clarified), before any efforts to create a supranational (regional) legal regime can be established. They could, in principle, investigate a GI arrangement for intra regional trade but the real issues relate to trade with third parties.

The efforts by member countries of the European Union to promote GIs in ACP countries should also be seen in the wider context of the WTO negotiations. Support of the EC position of full reciprocal acknowledgement of GIs will be a major objective of Brussels in the ongoing negotiations in the TRIPS and in the Agreement on Agriculture context.

Read more in a publication by the CTA: Practical Manual on Geographical Indications for ACP countries.

This report was prepared by Mr J.A.H. Hoffmann, Namibia.