MARKETING: Say Cheese!
Recent Western Cape Business News
SO where exactly was that Parmesan cheese produced which you grated over your pasta last night? The average consumer will be non-phased about the fact that the Parmesan cheese bought at the supermarket down the road was not produced in Italy. In fact the average consumer might not even know that there is a region in Italy called ‘Parmigiano Reggiano, not to mention the fact that the word ‘Parmesan’ is loosely used to describe the region ‘Parmigiano Reggiano’ in English.
Geographical Indications (‘GIs’) are indications that identify a product as originating from a region, where a given quality or reputation of the product is attributable to its geographic origin and therefore in essence serves the same function as a trade mark, namely to identify the source of the goods. A registered PDO (Protected Designations of Origin) is one of three forms of GI classifications designed to protect certain registered food and beverage products, by legally requiring such products to be made in a certain geographical zone or manner in order to obtain use of the name.
One of the most well known international Protected GIs is ‘Champagne’, which must be produced in the Champagne region of France to carry the name. If it does not originate from this area, it may only be referred to as sparkling wine. In South Africa the name used for sparkling wine produced in the same way as it is in the Champagne region, is Method Cap Classique or MCC for short.
As a member of the World Trade Organisation, South Africa has an obligation to provide means for the protection of GIs as set out in the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS Agreement). Although South Africa has not yet adopted specific legislation aimed at the protection of GIs per se, GIs are indirectly protected through certain provisions contained in various other statutes and bilateral trade agreements, as well as the common law remedy of unlawful competition. The Trade Marks Act, the Merchandise Marks, the Liquor Products Act and the Wine of Origin Scheme, issued in terms of the regulations under the Liquor Products Act, include provisions excluding the use of recognized geographical indications.
The Wine of Origin Scheme protects geographical wine producing areas in South Africa. South African wines are certified by the Wine and Spirits Board under the Wine of Origin Scheme in respect of specific areas of production and cultivars. Wines can be certified as wines of origin of a particular production area only if all the grapes used for such wine were harvested in that area. Cape Point, Constantia and Hemel-en-Aarde Valley are examples of demarcated areas under the Wine of Origin Scheme.
A GI could also be protected through registration as a collective or certification trade mark as provided for in the South African Trade Marks Act No 194 of 1993.
Foreign GIs are mainly protected by agreement and as far back as 1930 South Africa signed so called ‘Crayfish Agreement’ with France whereby South Africa relinquished the use of the term ‘Champaign’ on condition that France would open up its market for South African crayfish. Agreements prohibiting the use of the words ‘Champaign’ and ‘Burgundy’ followed.
In 1999, the European Community and South Africa signed an Agreement on Trade, Development and Cooperation in terms of which South Africa may not use the words ‘Port’ and ‘Sherry’ for exports to the European Community. For the domestic market, South Africa may use the names ‘port’ and ‘sherry’ until January 2012. In terms of this agreement provision was also made for the phasing out of words such as ‘Grappa’ and ‘Ouzo’. In 2002, the European Community and South Africa further signed two agreements for the protection of geographical indications for wines and spirits.
The widely and commonly used names for certain types of cheese could similarly give rise to problems. The European Court of Justice (ECJ) recently held, in The European Commission v Germany, that the name for this famous hard cheese, Parmesan, can only be used for cheeses which are in fact produced in this designated PDO zone around Parma and Reggio Emilia in Italy. This brings Parmesan cheese into the same category as other protected European cheeses like Roquefort, Gorgonzola and Feta.
The ECJ, in dismissing the German government’s submission that Parmesan is a generic term, ruled that the term Parmesan was both phonetically and visually similar to the ‘Parmigiano Reggiano’ PDO and that it could not be used as a general name for hard cheeses. German producers accordingly cannot use the Parmesan name on hard cheeses made in Germany.
At his stage South Africa has not concluded any bilateral agreement with regard to the use of the words Feta and Parmesan and these words may accordingly still be used on locally produced products.
Although ECJ decisions are not binding in South Africa and the words Feta and Parmesan may at this stage still be used on locally produced cheeses, it is not inconceivable that future bilateral agreements may well prohibit such use in South Africa.
The protection afforded to a PDO and the other types of GIs are extremely broad and producers should carefully consider the influence of GIs on their branding. Although South African producers are still allowed to refer to some GIs or PDO’s to identify products such as Parmesan, Calamata Olives and Feta, exporters should be aware that the use may be prohibited in other countries.
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