According to press reports, in February 2013 the South African government began to take action in response to efforts in 2012 by a French company to “register a number of trademarks incorporating the terms ‘South African Rooibos’ and ‘Rooibos’.” South Africa’s Business Day reported that if the French company were successful, “it would own the exclusive rights to the names of any rooibos products sold in France, a key market in the European Union, which is the biggest export market for rooibos.”
According to the reports, “this is not the first time a foreign firm has attempted to capture the intellectual property associated with Rooibos”, as there was a similar case in the United States in 2005. The South African Department of Trade commented that “rooibos tea is made from the leaves of a unique shrub, indigenous only to South Africa”, and the Minister of Trade and Industry, Rob Davies, said that the department has committed itself to vigorously defending South Africa’s trade and intellectual property interests, and is urgently reviewing “the legal options to strengthen protection of the Rooibos name in South Africa”.
In March, the EC posted an evaluation of the commercial value for agricultural products and foodstuffs, wines and spirits protected by geographical indications (GIs). A geographical indication is defined by the EC as “the name of a product where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin”.
According to the evaluation, the estimated “average value premium rate in the EU27” for “agricultural products and foodstuffs” is 1.55. This means that GI-protected “agricultural products and foodstuffs” on average attract over one and a half times the price of the same volume of non-GI-protected products falling in the same category (e.g. hams). For wines and spirits, these values were higher (2.75 and 2.57 respectively). The total value premium of EU27 GIs for “agricultural products and foodstuffs” was estimated at €5.6 billion in 2010 (the corresponding value for wines was €19.3 billion and for spirits €4.9 billion).
The EU system of GI protection continues to be dominated by wines and spirits (70.9%), while agricultural products and foodstuffs account for 29.1% of total sales. The sales value for GI-protected agricultural products and foodstuffs, however, showed stronger growth between 2005 and 2010 (+19%) compared to the overall growth in sales of EU GI-protected products (+12%). By 2010, GI-protected products accounted for around 5.7% of the total sales value of the EU food and drink sector.
According to the EC, France accounts for 38.4% of total GI sales value, 51.7% of total value of EU GI protected wine sales, 25.7% of spirit sales and 19.3% of the value of GI-protected agricultural products and foodstuffs sales.
While export sales of GI-protected products amounted to €11.5 billion in 2010, only 9% of these were agricultural products and foodstuffs, with Italian cheeses dominating this sub-component. By 1 January 2010, some 867 EU agricultural products and foodstuffs enjoyed GI protection, with a further 285 applications pending at the end of February 2013.
While trademarks and GI protection operate under different regulatory frameworks and give rise to different issues, the growing commercial value of GI-protected products and the additional income which can be generated for producers under GI schemes highlight the growing economic importance of ACP governments defending their “trade and intellectual property interests”. The rooibos case is a good example of why this is important.
While action is commonly most necessary at the sectoral and national level, in view of the often disproportionate costs that can arise for relatively small producers, there would appear to be scope for collective ACP action in identifying strategies for cost-effectively promoting the defence of ACP “trade and intellectual property interests”. Under what conditions, for example, does it make sense to pursue GI registration rather than trademark protection? Jamaican Blue Mountain Coffee producers have traditionally used trademark protection regimes, but have more recently “taken steps to register Jamaica Blue Mountain Coffee as a GI with the Jamaica Intellectual Property Office (JIPO)”.
Collective ACP action could focus on identifying the conditions under which different types of intellectual property protection (trademarks, GIs or other forms of quality-based product differentiation) should be sought in order to maximise net returns to primary producers.