Napa Val­ley granted GI sta­tus by China

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - EBEN VAN WYK and JOHN FOS­TER

IT HAS re­cently been an­nounced that the Napa Val­ley in the US has been granted ge­o­graph­i­cal in­di­ca­tor (GI) sta­tus by the Peo­ple’s Repub­lic of China, mak­ing it the first wine re­gion out­side China to be granted this recog­ni­tion.

The Napa Val­ley is an in­ter­na­tion­ally renowned wine grow­ing area lo­cated in Napa County, Cal­i­for­nia. The grow­ers and vint­ners of the 435 winer­ies sit­u­ated in the Napa Val­ley are known for their wine mak­ing meth­ods that com­bine cut­ting-edge sci­ence and tra­di­tional tech­niques. The name Napa Val­ley is there­fore in­dica­tive of a ge­o­graph­i­cal re­gion in the US where wines with spe­cific char­ac­ter­is­tics are pro­duced. This is known as a ge­o­graph­i­cal term or GI.

As a gen­eral rule, a trade­mark can­not be reg­is­tered — or of­fered any form of pro­tec­tion — un­less it is ca­pa­ble of dis­tin­guish­ing the goods or ser­vices of the ap­pli­cant from the goods or ser­vices of an­other.

Ac­cord­ingly, GIs are not usu­ally con­sid­ered dis­tinc­tive enough to be reg­is­tered as trade­marks.

In fact, in SA, the Trade Marks Act pre­cludes the reg­is­tra­tion of a mark con­sist­ing ex­clu­sively of a sign which may serve as a des­ig­na­tion of ge­o­graph­i­cal ori­gin and a GI is gen­er­ally only af­forded pro­tec­tion if the mark has be­come dis­tinc­tive through ex­ten­sive use thereof in as­so­ci­a­tion with cer­tain goods or ser­vices or if it is reg­is­tered as a cer­ti­fi­ca­tion or col­lec­tive trade­mark.

How­ever, use of a place name to de­scribe a prod­uct that was in fact made else­where, or when the prod­uct so de­scribed does not have the usual char­ac­ter­is­tics as­so­ci­ated with prod­ucts from a spe­cific re­gion, can mis­lead con­sumers. This is of par­tic­u­lar con­cern to wine and spirit mak­ers where the ge­o­graph­i­cal ori­gin of their prod­ucts is of­ten as­so­ci­ated with the qual­ity or char­ac­ter­is­tics thereof.

In an ef­fort to ad­dress these con­cerns, mem­ber coun­tries of the World Trade Or­gan­i­sa­tion ne­go­ti­ated the Agree­ment on Trade-Re­lated As­pects of In­tel­lec­tual Prop­erty Rights (TRIPS) in the early 1990s. This agree­ment in­cluded spe­cial pro­vi­sions to reg­u­late the use of GIs. Ar­ti­cle 23 of TRIPS pro­hibits any false use of a GI, even if such use is not mis­lead­ing or does not amount to un­fair com­pe­ti­tion.

The re­stricted use of the words Napa Val­ley is there­fore in line with the pro­vi­sions of TRIPS.

The re­quest for GI recog­ni­tion in China was made di­rectly to the Chi­nese gov­ern­ment by the Napa Val­ley Vint- ners (NVV), a non-profit trade as­so­ci­a­tion re­spon­si­ble for pro­mot­ing and pro­tect­ing the Napa Val­ley des­ig­na­tion. Napa Val­ley wines have been sold in China for the past 14 years and, though Napa Val­ley ac­counts for just 4% of Cal­i­for­nia’s wine pro­duc­tion, nearly 25% of NVV mem­ber winer­ies are ex­port­ing to China. Not only is this recog­ni­tion a great hon­our but it also al­lows the NVV to pre­vent the use of the words Napa Val­ley on wines that are not pro­duced in this re­gion.

The NVV’s cam­paign to pro­tect the Napa Val­ley des­ig­na­tion has also seen it granted GI sta­tus in other im­por­tant and emerg­ing mar­kets such as In­dia, Thai­land, Canada and Brazil.

Ac­cord­ing to a re­cent re­port of SAWIS (South African Wine In­dus­try In­for­ma­tion & Sys­tems), SA wine ex­ports to China in­creased al­most 75% last year. Well-known pro­ducer Leop­ard’s Leap Wines en­tered into a joint ven­ture ear­lier this year to ex­port nearly 2.9-mil­lion bot­tles of lo­cal wine to China and it is likely that more pro­duc­ers will start to look at Asia as an ex­port des­ti­na­tion for their wines.

In this in­creas­ingly glob­alised econ­omy, it is be­com­ing ever more im­por­tant to grant GIs the ap­pro­pri­ate pro­tec­tion. Though a num­ber of wine re­lated GIs are pro­tected in SA un­der the Wine of Ori­gin Scheme, it is be­com­ing more im­por­tant for SA to pro­tect its wine GI’s in other ex­port ter­ri­to­ries. While SA has taken strides to­wards recog­nis­ing this form of in­tel­lec­tual prop­erty, it is yet to in­tro­duce a com­pre­hen­sive le­gal frame­work to pro­vide ad­e­quate pro­tec­tion to lo­cal and in­ter­na­tional GIs.

Im­ple­ment­ing such a frame­work would surely go a long way to per­suad­ing dif­fer­ent in­ter­na­tional com­mu­ni­ties to recog­nise SA’s own GIs in their lo­cal mar­kets.

Newspapers in English

Newspapers from South Africa

© PressReader. All rights reserved.