DATE: June 6, 2007
STATE ADMINISTRATION FOR INDUSTRY AND COMMERCE WORLD INTELLECTUAL PROPERTY ORGANIZATION
INTERNATIONAL SYMPOSIUM ON GEOGRAPHICAL INDICATIONS
jointly organized by
the World Intellectual Property Organization (WIPO)
the State Administration for Industry and Commerce (SAIC)
of the People’s Republic of China
Beijing, June 26 to 28, 2007
GEOGRAPHICAL INDICATIONS AT THE NATIONAL LEVEL
A VARIETY OF APPROACHES AND INSTITUTIONAL ASPECTS
Presentation by Dr. Dirk Troskie
Agricultural Economist and Deputy Director, Department of Agriculture,
Western Cape, Elsenburg, South Africa
What is the role of Agriculture in a modern economy? Does Agriculture remain
relevant when its share of the total economy is continuously decreasing? How can we
successfully assimilate in an increasingly integrated international society? How does
Agriculture react to social pressures such as the need for the more equal distribution of
ownership of productive resources and employment creation? What about Agriculture’s role
as custodian of the natural resources? How do we prevent losing our collective heritage to
These are some of the questions that we, in South Africa, grapple with on a daily basis.
Various remedies exist in order to address these issues, but a developing country must always
be observant of the pressures on its scarce and limited public resources. In this paper the
Geographic Indication (GI) approach in South Africa and its value in addressing some of
these issues will be analysed. As South Africa is a country faced by duality (rich and poor,
urban and rural, developed and marginalised), it is not strange that the systems used for wines
and the one used for non-alcoholic products differs considerably. For this reason these two
systems will be addressed separately. The final part of this paper will focus on Rooibos; one
specific potential GI in South Africa with a very special place in society.
THE INSTITUTIONAL SYSTEM IN THE WINES AND SPIRITS INDUSTRY
The history of wines in South Africa dates back to 1659 when the then Governor of the
Cape, Jan van Riebeeck, made an inscription in his diary. From 1726 wines the Constantia-
wines were very prominent and the wine culture became a very special element in the cultural
and social life of the population, but especially the rural people, of the South-Western Part of
South Africa (Brink 1974). At a very early stage South Africa acknowledged the linkage
between the product of the vine and its origin by entering into the Crayfish Agreement with
France in the 1930’s. At the basis of this Agreement is the fact that South Africa relinquished
the use of the term “Champaign” on the condition that France would open up its market for South African crayfish. A more formal indigenous system for managing and certifying the
link between the product and its specific environment was created with the establishment of
the Wine and Spirits Control Act in 1970 (Act 47 of 1970).
This system was refined with the establishment of the Liquor Products Act of 1989
(Act 60 of 1989). In this Act a number of elements are relevant for the purpose of this
(a) In Section 2 of the Act it establishes a Board that will be responsible for the
development of policy and the appropriate systems.
(b) However, in Section 3 it allows for the delegation of the Administration of the
System to another party that may be better suited for the administration of this
system. At this stage the Administration of the Wine and Spirits Scheme is
delegated to South African Wine Information and Systems (SAWIS).
(c) It makes provision for the establishment of the Wine and Spirits Scheme in
Sections 14 and 15.
(d) As it is acknowledged that we are living in a fast changing environment, the Act
provide in Section 27 for the majority of the details of the scheme to be
proclaimed by Regulation.
As part of this System 22 Regulations have been published to date. The most important one
that provided the foundation for the Wine and Spirits System was Regulation 1434 of 1990.
This Regulation provided inter alia for:
(a) The details of the Scheme.
(b) Delimitation of the Geographic Areas.
(c) Prescripts for cultivar wines.
(d) Vintage wines.
(e) Prescribe the conditions for the use of certain terms and prohibits the use of some
(f) Prescribe bottling, sampling, certification and the requirements for seals and
(g) Payment of fees.
It is clear that this scheme is an absolute success. From 1985 to 2006 the volume of
wine certified under this scheme has increased from 22,3 million litre to 330,2 million litre
(SAWIS, 2007). This represents and increase of 1 382 percent over this period. At the same
time it must be mentioned that the system receives no subsidies from government, but that the
producers carries the cost of this system. The current cost of the System amounts to R0,04
(about $0,005) per bottle.
Within the context of this Symposium and as this System allows for the formalisation of
the linkage between the geographical area and the wine, it is appropriate focusing on nature of
the geographical descriptions. The System makes provision, in an overlaying order and in
declining order of size, for:
(a) 3 Geographical units
(b) 5 Production areas
(c) 21 Districts
(d) 56 Wards
(e) 129 Estates
(f) Single vineyards
This means that a producer may, according to individual needs, decide where to source
the grapes for the wines. In practice it means that certain entrepreneurs would decide to
produce Estate Wine of Origin, of course sourcing all grapes from the specific estate. In other
instances an entrepreneur may decide it is more appropriate to have Wine of Origin from a
bigger delimitation, allowing him to source grapes from a number of farms. In this case it
allows the co-existence of trademarks and GI.
Finally, the System is very rigorous in terms of the Certification procedures and the latest technologies are being used. On the neck of each bottle a certification seal is attached. As each bottle has a unique number and the consumer can in real time query the number on the website, this allows for consumer participation and confidence.
This System has been long established, globally recognised and is flexible in allowing the entrepreneur to decide what is appropriate for the specific circumstances. At the same time it ensures that the correct information is conveyed to the consumer.
THE INSTITUTIONAL SYSTEM FOR NON-ALCHOLIC PRODUCTS
It is now appropriate to move the attention from the Wines and Spirits System to the System for non-alcoholic products. During this movement the real meaning of South Africa’s
duality is being experienced. Whereas the Wine System has been long established, the System for other products is being driven by fear. Fear for other countries claiming their right to their products. It is not strange to hear people referring to the claims that may be made on generic products such as pizza and salami. The result of this fear is that the System has been designed to be just compliant with South Africa’s international commitments and, more specifically, the Trips Agreement. The result is that the system is not cohesive, but uses a combination of the Trade Marks Act, Unfair Competition Regulations and Consumer Protection Laws (Bramley, 2007). The result is that, in effect, the South African System provides better protection for foreign GI than for domestic GI.
However, around the turn of the Century the so-called “Rooibos case” captured the headlines
in South Africa. The essence of the case is that Forever Young, a South African Company specialising in pharmaceutical and skin care products, registered the “Rooibos” trademark on 12 August 1992 in the United States (USPTO, 2004). When the owner of the Forever Young neared retirement age, she sold the Rooibos trademark in 2001 for $10 to her long standing US business partner, a company with the name of Burke International (Cape Argus, 2005). Although cancellation procedures was started by Rooibos Ltd (the major Rooibos processor in South Africa) soon after the registration by Forever Young (USPTO, 2004), the whole problem only reached the front pages of the popular press in South Africa when the Wupperthal cooperative (representing the resource poor farmers in Wupperthal) ran into legal problems while exporting their product to the US. During the process Burke International claim to have spent quite a considerable amount ($250 000) on policing and protecting its trademark (Tralac, 2007). However, probably one of the most insulting incidents was when Burke International demanded royalties from South African companies for using the term Rooibos in the US (Sunday Times, 2004). Further, it must be remembered that Burke International use Rooibos as an ingredient in their skin care products with the result that their imports of Rooibos amounts to less than 1 ton per year. Fortunately (from a South African perspective) a number of the coffee houses in the US wanted to sell Rooibos and thus joined the litigation process (Cape Argus, 2004). The case has since been settled out of court following a ruling in February 2005 by a district court in Missouri in favour of a US company (Republic of Tea) (Tralac, 2007). Nevertheless, this was done at the cost of about $1 million for the Industry.
Partly as a result of this specific case some realisations took place in South Africa.
(a) We should not only be afraid of other countries trying to protect their own, but we
also have a heritage that is at risk.
(b) The cost of the case represented quite a substantial amount for a small industry.
(c) Who should protect our heritage? Is that the function of government or of the
(private) role-players in the industries? This is especially a problem for the
smaller industries without a substantial economic base, multiplied by the number
of countries where protection is sought.
(d) It is necessary to embark on a serious quest in search of solutions.
(e) Even South Africans cannot be trusted, but may for financial or other personal
reasons exploit the collective heritage if it is not protected adequately.
One of the results that came out of this whole case is the establishment of the South African
Rooibos Council (SARC). Although it is still in its infancy, it represents the whole industry
(small and commercial producers, labour, processors, etc.) and is an ideal vehicle for
collective action. Another result is that, since this case reached the headlines, various
government institutions (Department of Trade and Industry, National Agricultural Marketing
Council) started showing interest in the problematique surrounding this case. At the same
time, and providing a link between policy development and research, a number of research
projects surrounding Geographical Indicators were launched. These included a collaborative
project between four of the nine Provinces, the multi-stakeholder (Universities, Research
Institutions, Government Departments) and multi-country (South Africa, Namibia, France)
Duras Project as well as the Biodivalloc project. Finally, an Amendment Bill on Intellectual
Property is in the process of being finalised by the Department of Trade and Industry. It is
clear that this Bill will address some of the Intellectual Property concerns that are currently on
CASE STUDY: ROOIBOS AS A POTENTIAL GEOGRAPHIC INDICATOR
In the previous Section the importance of Rooibos in the collective consciousness of
South Africa’s people was discussed. It follows that it was appropriate to include Rooibos as
one of the Southern African case studies in the Duras Project. The other case studies include
Honeybush Tea, Cambeboo Mohair, Karoo Lamb, Kalahari Melon Seed (Namibia) and
Swakara (Namibia). In the rest of the Section Rooibos as a potential Geographical Indicator
will be explained in more detail. To this end information will be drawn from the ongoing
work of Bienabe and Troskie (2007).
Rooibos is a fairly small industry localised in the arid parts of Western South Africa.
About 350 farmers are involved in the production of Rooibos and the majority of these
farmers are commercial farmers. However, there are specific communities of resource poor
farmers such as Wupperthal and Heiveld where the production of Rooibos is indelibly linked
to the culture as well as the economic and social life of the individuals. It is significant to
note that there is a significant price difference between ordinary Rooibos and Rooibos with
attributes such as originating in the mountain, wild harvested and organically or fair trade
On the processing side there are 8 processors, of which one dominates the market with
approximately 75% of the market share. Close to two thirds of the Rooibos is exported and in
the export market Rooibos is distinctly recognised as a uniquely South African product. The
current boom in the export demand for Rooibos is closely related to its health attributes. A
major problem is that the majority of the product is currently exported in bulk and it follows
that a significant opportunity for down-stream value adding exists. Another opportunity or
problem, depending on your specific point of view, is that Rooibos is not only used as a tea,
but also forms a significant ingredient in certain pharmaceutical and skin-care products. This
property was exactly at the basis of the trade mark dispute with Forever Young.
It is important that the SARC has fully accepted ownership of Rooibos as a potential GI, and
the whole case study with its potential future registration as a GI is being driven by this body.
At the centre of the Rooibos as a GI is the product specification and the Industry is in the
process of finalising this specification. It is important to note that this specification is based
on consensus on the one hand, but also on the need for good scientific evidence for each of
the elements. The first part of the specification is the delimitation of the areas and the
industry has identified five conditions that need to exist for the successful production of
Rooibos. These are:
(a) It must in the winter rainfall area.
(b) The substrate must be a derivative of Table Mountain Sandstone.
(c) It must be deep, well drained sandy soils.
(d) The ph of the soil must be below 7.
(e) It must be in the Fynbos biome.
By using these criteria the delineation as indicated in FIGURE 1 is being identified.
The second leg of the product specification is production practices. The main elements
of the agreed upon production practices include:
(a) Production must take place in the delimitated area.
(b) Biodiversity standards are being developed. The reason for this is that due to wild
harvesting, production expansion and changes in the crop patterns, biodiversity
and the well being of natural resources are under threat.
(c) It must be produced under dryland conditions.
(d) However, irrigation is allowed on the condition that no irrigation takes place
within the two months prior or during harvesting.
The third leg of the product specification is the harvesting standards. Only two
important elements were identified, namely:
(a) It must be annually harvested.
(b) At leas 20% of the leaves must be retained.
Probably the most important part of the product specification, and also the part
containing the most sensitive elements, is the processing part of Rooibos. The main elements
(a) It must be delivered to the tea court within a specified time.
(b) The green material must be cut to a specified length.
(c) It must be placed in a specified manner in the sun and wetted to aid fermentation.
(d) The leaves must be bruised for fermentation.
(e) No catalysts may be added to the product in order to facilitate fermentation.
(f) Odour and colour codes have been agreed upon for the fermented product.
(g) Following the fermentation the product must be spread in the sun for drying. Due
to the specific harsh conditions in this area, the exposure to the sun provides a
further link to the specific delimitated area.
(h) It must be dried in the sun to a moisture content of less than 10%.
(i) It must be stored in a cool, dry place.
(j) All health regulations must be adhered to.
(k) The tea court itself must be in the delimitated area.
FIGURE 1: THE CURRENT AND POTENTIAL CULTIVATION AREA OF
Source: Elsenburg GIS (2007)
With the exception of the delimitated are, a separate and distinct product specification
has been developed for Rooibos as a green tea. Certain key elements of the product
specification have not been completed yet. These include the social elements of the
specification as well as how inspection and certification will take place. As soon as these
have been agreed upon, a more detailed cost/benefit analysis can be completed.
Although certain questions and challenges still remain in the Industry, it is clear that
there is a momentum in the Industry for the valorisation and protection of Rooibos. This
momentum is not only at producer level, but also on an institutional and consumer level. It
follows that it can be expected that, once the product specification is completed, domestic and
international registration as a GI will be sought by the Industry.
The purpose of this paper was to describe the institutional environment for
Geographical Indicators in South Africa. It became clear that the institutional environment
for wines and spirits is significantly different form that of non-alcoholic products. However,
it also became clear that there are forces working towards an institutional change for non-
alcoholic products. As Rooibos played an important role in this process, it was appropriate to
consider it as a potential case study for one of the non-alcoholic products.
Bienabe, E & Troskie, DP (2007) A Product Specification of the Rooibos Industry. Work in
Progress, Western Cape Department of Agriculture,
Elsenburg. Bramley, C (2007) A legal synopsis of the protection of geographical
indications in Southern Countries. Paper presented at the
International Symposium: Promoting Local Specialities
from Southern Countries, 23 – 26 April 2007, Addis
Abeba, Ethiopia. Brink, AP (1974) Dessertwyn in Suid-Afrika. Buren, Kaapstad.
Cape Argus (2004) Business Report in Cape Argus, 28 April 2004).
Cape Argus (2005) Business Report in Cape Argus, 10 February 2005).
Elsenburg GIS (2007) Geographic Information System, Division of Natural
Resources, Western Cape Department of Agriculture. SAWIS (2007) South African Wine Information System.
Sunday Times (2004) Sunday Times, 3 May 2004.
Tralac (2007) Trade Law Centre for Southern Africa.
http://www.tralac.org. USPTO (2004) United States Patent and Trademark Office.
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