South Africa Moves Toward New IP Policy; Rooibos Industry Seeks Protection

CAPE TOWN – The South African National Intellectual Property Policy is expected to be published this month, after a much-anticipated wait to see what shape and form the policy has given intellectual property rights in the country.

During its meeting on 7 August, the Cabinet approved the National Intellectual Property Policy for public comment. The contents of the policy will only be made available to the public once it is published in the Government Gazette.

While no date was announced for the publication of the policy in the government gazette, Simphiwe Ncwana, director of commercial law and policy in the South African Department of Trade and Industry, told Intellectual Property Watch that it is expected to be published this month.

Thirty days will then be set aside for public comment from the time of publication in the Gazette.

Ncwana did not give much away with regards to the policy’s content, saying only, “We have done some changes.”

This policy is a reworking of a 2010 draft and has been several years in the making, having been circulated by government internally as well as incorporating outside input in order to shape and refine ahead of submitting to Cabinet for approval.

Stakeholders are keen to understand how the proposed new IP policy will impact them. In particular, the local Rooibos tea industry – seen as a distinct, traditional product – has been feeling exposed without a national IP policy.

Earlier this year, the rooibos industry was confronted by a French company’s attempt to trademark Rooibos. At the time, Trade and Industry Minister Rob Davies said in a press statement that his department stood ready to defend South Africa’s trade and intellectual property interests “vigorously” and that the attempt to trademark Rooibos would require an “urgent assessment of the legal options to strengthen the protection of the Rooibos name in South Africa.”

Rooibos tea industry stakeholders are hopeful that the latest proposed IP policy has made some provision for the protection of Rooibos. The distinctive red tea leaves are endemic to South Africa, and the caffeine-free brew part of South African culture.

Following this latest attempt to trademark rooibos by a foreign company, Davies has now confirmed that a geographical indication (GI) is being pursued within the context of a European Union and South Africa trade framework.

Davies told Intellectual Property Watch that he expects that there would be “reciprocal protection from the EU within the EU’s own regime as part of the economic partnership agreement negotiations.”

However, under EU law, a product must be protected in its home country before it can be given GI status.

GI protection in the EU also is being sought for other South African products such as Karoo lamb and Honeybush tea.

Geographic indications are a way of protecting products with particular characteristics deriving from a specific region. Some European examples include Champagne, Parma ham and Feta cheese.

Soekie Snyman, spokesperson for the South African Rooibos Council, said that following the latest foreign attempt to trademark Rooibos earlier this year, the council began pursuing all available alternatives to protect the Rooibos name.

This included applying for protection under the Merchandise Marks Act. This effort bore fruit when trademarks to describe the tea product known as Rooibos were published in the Government Gazette for public comment. The window period for public comments was open until 12 August.

The following marks were listed:

• Rooibos
• Red Bush
• Rooibostee
• Roobos Tea
• Rooitee
• Rooibosch

If the proposed protection under the merchandise marks act comes into effect, then it provides a signal to European authorities that the term has been secured by local legislation.

The council has also pursued another option of protection for Rooibos under the Agricultural Products Standards Act and is awaiting word of approval from the relevant government department.

The market growth of Rooibos tea has been a steep trajectory with the tea now available worldwide and especially favoured amongst the health-conscious. Rooibos tea is strictly speaking an herbal brew.

Rooibos is an indigenous plant grown solely in parts of the Western Cape and Northern Cape of South Africa.

The recent attempt by the French company to trademark Rooibos brought to the surface memories of a similar attempt by an American company, Burke International. In 1994, Burke registered the name “Rooibos” with the US Patent and Trademark Office.

As the use of Rooibos became more popular, Burke demanded that companies either pay fees for use of the name, or cease to use it. However, a public campaign highlighting South African interests resulted in the matter being settled out of court and Burke agreed to cancel its registration of the word Rooibos internationally.