| (1) |
An application for registration as a South African GI by a group from within the Republic of South Africa shall be submitted electronically to the Executive Officer and at least in English: Provided that an application for registration shall not be considered in instances where the proposed name— |
| (a) |
is identical to an existing registered GI for the same agricultural product originating from the same or similar geographical origin; |
| (b) |
is identical to a term customary in common language in the Republic of South Africa as the common name for the agricultural product concerned; |
| (c) |
falsely communicates to the consumer that the agricultural product concerned originates from a certain territory, or region or locality in that territory, although its quality, reputation or other characteristic is attributable to another territory from which it truly originates; |
| (d) |
is generic and cannot identify the place of production and given quality, reputation or other characteristics attributable to the place 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; |
| (e) |
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; |
| (f) |
is wholly or partially homonymous with an existing registered GI and is likely to mislead consumers: Provided that the Executive Officer may consider the registration of a homonymous name as a GI 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 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; |
| (g) |
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 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 |
| (ii) |
he/she has considered that the GI may co-exist with the trade mark, taking into account at least the following factors: |
| (aa) |
the proposed GI’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 |
| (h) |
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 group: |
| (i) |
Name of the group and contact details, i.e. physical address, e-mail address and telephone number. |
| (ii) |
Composition of the group, as well as the necessary proof that the group is representative of the agricultural product for which protection is sought: Provided that a group is deemed to be representative where— |
| (aa) |
its members produce and/or process at least 50% of the production volume of the agricultural product concerned; and |
| (bb) |
they can show that the group is organised based on democratic principles. |
| (b) |
The name of the proposed GI to be registered: Provided that a translation of the proposed GI into English shall be provided if in a language other than English. |
| (c) |
Proof that the proposed GI— |
| (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 group has obtained prior written consent from the owner of the trade mark for its co-existence with a GI 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 and/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 refining 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 information: |
| (a) |
Specific elements about the labelling and/or rules regarding the use of the proposed GI: 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 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) |
Each group applying for registration as a South African GI shall— |
| (a) |
nominate a qualified South African auditor to audit the GI as intended in regulation 19(1); and |
| (b) |
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 nominated qualified South African auditor to verify compliance during audits. |
| (5) |
A joint application for registration as a GI for the same agricultural product may be submitted by several groups in instances where the proposed name— |
| (a) |
designates a trans-border geographical area; or |
| (b) |
is a traditional name connected to a trans-border geographical area. |
(E.g. "Kalahari Lamb" where the Kalahari covers parts of the RSA, Namibia & Botswana)
Special Investigating Units and Special Tribunals Act, 1996
