Agricultural Product Standards Act, 1990 (Act No. 119 of 1990)RegulationsProtection of Geographical Indications and Designations of Origin used on Agricultural Products intended for sale in the Republic of South Africa4. Application for registration as a South African geographical indication or a South African designation of origin |
| (1) | An application for registration as a South African GI or a South African designation of origin from within the Republic of South Africa shall be submitted electronically to the Executive Officer and at least in English by either a producer or group of producers: Provided that an application for registration shall not be considered in instances where the proposed name— |
| (a) | is identical to an existing registered GI or registered designation of origin for the same agricultural product originating from the same or similar geographical origin; |
| (b) | falsely communicates to the consumer that the agricultural product concerned originates from a specific region, place or locality although its quality, reputation or other characteristic is attributable to another region, place or locality from which it truly originates; |
| (c) | is generic and cannot identify the place or locality of production and given quality, reputation or other characteristics attributable to the place or locality of production: Provided that account shall be taken of all relevant factors, and in particular the opinion of producers and consumers, especially those in the region from which the name originates, when deciding whether a name has become generic or not; |
| (d) | is identical to a customary name of a plant variety or an animal breed existing in the Republic of South Africa and is likely to mislead the consumer as to the true origin of the agricultural product; |
| (e) | is wholly or partially homonymous with an existing registered GI or registered designation of origin and is likely to mislead consumers: Provided that the Executive Officer may consider the registration of a homonymous name as a GI or designation of origin by taking into account the need to ensure— |
| (i) | the equitable treatment of the producers of the agricultural product(s) concerned to which the GI or designation of origin relates; |
| (ii) | that there is a clear distinction between the use of the homonymous name registered subsequently and the use of the name already entered in the Register; and |
| (iii) | that consumers are not misled about to the true origin of the agricultural product concerned; |
| (f) | is identical or similar to the name of a trade mark used in the Republic of South Africa on the same or similar agricultural product(s): Provided that the Executive Officer may register a GI or designation of origin that is identical or similar to a trade mark if— |
| (i) | the owner of the trade mark has consented to its registration as a GI or designation of origin; or |
| (ii) | he or she has considered that the proposed GI or designation of origin may co-exist with the trade mark, taking into account at least the following factors: |
| (aa) | the proposed GI or designation of origin's history of use in good faith in the Republic of South Africa; and |
| (bb) | the legitimate interests of the owner of the trade mark and of third parties; and |
| (g) | is intended to be used in translation or is accompanied by words or expressions such as "kind", "type", "style", "imitation", "method", "as produced in", or any similar words or expressions. |
| (2) | An application referred to in sub-regulation (1) shall at least include the information specified below: |
| (a) | The following information regarding the applicant or applicant group: |
| (i) | Name of the producer or group of producers and contact details (i.e. physical address, e-mail address and cellular phone/telephone number). |
| (ii) | In the case of a group of producers, the composition of the group. |
| (iii) | Details about the producer or group of producers' business interests in the defined geographical area. |
| (b) | The name of the proposed GI or designation of origin to be registered: Provided that a translation of the proposed GI or designation of origin into English shall be provided if in a language other than English. |
| (c) | Proof that the proposed GI or designation of origin— |
| (i) | is not a generic name; |
| (ii) | does not correspond with the customary name of a plant variety or an animal breed in the Republic of South Africa that is likely to mislead the consumer as to the true origin of the agricultural product; and |
| (iii) | is not identical or similar to the name of a trade mark used in the Republic of South Africa on the same or similar agricultural products: Provided that if the producer or group of producers has obtained prior written consent from the owner of the trade mark for its co-existence with a GI or designation of origin on the same or similar agricultural products, the necessary proof shall be included in the application. |
| (d) | The following specifications regarding the agricultural product: |
| (i) | The type of agricultural product. |
| (ii) | A description of the product's main physical, chemical, microbiological and organoleptic (where applicable) characteristics : Provided that existing quality or compositional requirements prescribed in the regulations published under the Act for the agricultural product concerned shall be taken into consideration at all times. |
| (iii) | A description of the production process/ method, and any processing or preparation that takes place in the defined geographical area. |
| (iv) | Proof that the agricultural product originates in the geographical area which shall include the history of the product and its traceability. |
| (e) | A definition of the geographical area. |
| (f) | Details demonstrating— |
| (i) | the link between the quality or characteristics of the agricultural product and the geographical environment; or |
| (ii) | where appropriate, the link between a given quality, the reputation or other characteristics of the agricultural product and its geographical origin. |
| (3) | An application referred to in sub-regulation (1) may in addition also include the following |
| (a) | Specific elements about the labelling or rules regarding the use of the proposed GI or designation of origin: Provided that the existing labelling requirements and restrictions prescribed in the regulations published under the Act for the agricultural product concerned shall still be complied with. |
| (b) | A description of any specific or unique shape of the agricultural product concerned. |
| (c) | Specific elements of the packaging, where the applicant or applicant group is able to justify that the packaging is necessary in order to ensure product quality, as well as to guarantee traceability or control in the defined geographical area. |
| (4) | The producer or group of producers applying for registration as a South African GI or South African designation of origin shall provide a summary of the critical elements of control (i.e. minimum product specifications and any other information deemed necessary) that will be used by the assignee designated for the agricultural product(s) concerned to verify compliance during inspections. |
| (5) | A joint application for registration as a GI or designation of origin for the same agricultural product may be submitted to the Executive Officer by one or more producers on an individual basis, or by a single group or several groups of producers in instances where the proposed name designates a trans-border geographical area. (E.g. 'Kalahari Lamb' where the Kalahari covers parts of the Republic of South Africa, Namibia and Botswana) |
| (6) | An application for the registration of the proposed name as a trans-border GI or trans-border designation of origin referred to in sub-regulation (5) shall only be considered by the Executive Officer if the following conditions have been met: |
| (a) | The minimum product specifications for the use of the proposed name have been negotiated and agreed upon between the Department and the competent authority(ies) in the trans-border country(ies) concerned. |
| (b) | The Department has obtained the necessary proof that the name for which registration is requested, is registered, in use and protected in the trans-border country(ies) concerned. |