Rooibos: Revealing the road to traditional knowledge protection

September 1st, 2021

Recently Rooibos tea, a traditional knowledge product of South Africa (SA), became the first in Africa to get protection designation from the European Commission, which approved the registration of Rooibos and Red Bush in its register of protected designations of origin and protected geographical indications. This recognition will allow the Rooibos industry to use the European Union (EU) logo on products thus indicating its uniqueness and authenticity to consumers in Europe. This status signifies quality, reliability, and sustainability – all factors relating to geographical indications.

According to many authors, geographical indications can act as a traditional knowledge protection instrument. ‘[U]nlike other intellectual property systems, which cannot accommodate the defining attributes of traditional knowledge without being extensively changed, geographical indications provide a “discernable structural and functional compatibility” with traditional knowledge which caters for its unique attributes’ (S Balaram ‘Enhancing South Africa’s traditional knowledge trade through the extension of geographical indications under the TRIPS Agreement’ (LLM thesis, University of KwaZulu-Natal, 2018)). Furthermore, geographical indications provide market differentiation and valuable competitive advantage, which is difficult to erode. The recent geographical indication success with Rooibos can pave the way forward for more traditional knowledge products to be protected through bilateral and multilateral agreements. The Economic Partnership Agreement between the EU and the Southern African Development Council allowed for Rooibos tea’s successful protection thereby illustrating the importance of this SA and EU preferential trade relation, especially since it can ensure the supply of affordable and suitable food products and jobs along the food value chain. Despite this achievement, more needs to be done to ensure a global protection, and not just one situated in the EU. The World Trade Organisation’s Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, to which many countries – including SA – are a party to, is the way forward with regard to this global protection endeavour, however, a few hindrances prevent this realisation.

The first lies with art 23 of the TRIPS agreement, which speaks to the enhanced geographical indication protection for wines and spirits only. Here, traditional knowledge is not mentioned as a category thereby proving such clause to be discriminatory with no legal reasoning. Therefore, a call for an extension of this clause needs to be met. The set-back to realise this, however, lies with the fact that developed countries do not seem to have much interest in this extension and developing countries are not so united to press on discussions around this (see Balaram (op cit) at ch 3.4 for an in-depth discussion on the hindrances).

The solution to this is two-fold. Firstly, compromise needs to be sought by developed countries, so that all the diverging interests are considered and balanced in order to acquire fairness and fulfilment of a developing country’s needs (ie, the preservation and protection of traditional knowledge). Further, it can be noted that traditional knowledge owners and producers require assistance in obtaining access to information related to the markets and the facilitation of fair and equitable business partnerships. Such assistance can be provided by developed countries to developing and least developed countries.

Secondly, developing countries need to unite in the common goal to extend art 23 of TRIPS. The first step would be to develop a national protection system for traditional knowledge products since research has shown that an array of products that have unique qualities and reputation (such as traditional knowledge products) are not registered as geographical indications or even protected. Developing countries should help each other with this undertaking through the sharing of knowledge and opinion, which is essential to develop dialogue about globalisation, the preservation of cultural diversity and trade. Once this is established, then developing countries can take to the international platform and motivate for the global protection of its traditional knowledge (see Balaram (op cit) at ch 5.3 and 5.4 for an in-depth discussion on the solutions).

With the current protection afforded to Rooibos, its presence in the local and European market is secure and protected against misuse. Sustenance of the Rooibos industry is also reaped thereby contributing to the preservation of traditional knowledge, heritage, community traditions, and the upliftment of farmers in indigenous communities producing Rooibos. South Africa has a rich biodiversity linked to traditional knowledge so products such as Honeybush tea can also eventually gain the EU logo status like Rooibos tea. South Africa can, therefore, make progress with protecting more traditional knowledge products in the EU but a lot of work still has to be done in order to get enhanced geographical indication protection under TRIPS. Working with other African countries and learning from other countries with established traditional knowledge protection laws, can promulgate the way forward with the World Trade Organisation.

Sujata Balaram LLM (UKZN) is an Editor in the Commentaries Department at LexisNexis in Durban.

This article was first published in De Rebus in 2021 (Sept) DR 38.

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