South Africa: Rooibos

Last Updated: 28 March 2013
Article by Rowan Forster
Most Read Contributor in South Africa, September 2019

Rooibos certainly does make the headlines.  That soothing cup of tea that so many of us enjoy was big news a few years back when an American company  announced that it had a US trade mark registration for the name Rooibos, and  that it would be able to block South African exporters of rooibos tea from using the name in the USA – it subsequently transpired that  a South African entrepreneur who had been at the forefront of rooibos exports to the USA had in fact obtained the US registration way back in 1994 (at a time when the name was practically unknown outside of South Africa), and subsequently sold it to the US company. The South African government entered the fray and, at one stage, things became a bit ugly. Legal proceedings to cancel the registration were filed in the USA, and the owner eventually agreed that it would not claim exclusive rights to the word.

A similar story has unfolded in France, where a French company has applied to register Rooibos as a trade mark for beverages.  Once again the government has stepped in, with Trade & Industry Minister, Rob Davies, talking of the 'capture of the intellectual property associated with Rooibos'. Davies went on to say that 'the DTI stands ready to defend South Africa's trade and intellectual property interests vigorously', adding that  his department had lodged an objection with the French Embassy in South Africa and the European Commission Delegation in Pretoria.  But Davies did intimate that things are not exactly clear when it comes to the legal position of rooibos: 'The issues in this particular matter will require an urgent assessment of the legal options to strengthen protection of the Rooibos name in South Africa.'

So just what are the legal issues here? Well, the first point worth noting is that rooibos is the name of a type of tea - one that is derived from a particular plant - rather than a brand of tea.  Which makes rooibos a generic name, and one that cannot be monopolised by a single party.   The second is that the plant that rooibos tea is derived from is only to be found in a particular region of the Western Cape.  Which means that, although there is no place called Rooibos, the word does have a certain geographical significance.

In certain parts of the world it is possible to get legal protection for a geographic indication in cases where a certain quality is ascribable to the source.  The Europeans are particularly big on this, and in the European Union it's possible to register a  name as a 'Protected Designation of Origin' (PDO) in cases where all stages of production occur in the area, or alternatively as a  'Protected Geographical Indication' (PGI) in cases where only one stage of the production cycle occurs in the area.  As a result, a large number of names are off limits in the EU. Obvious and well-known examples include Champagne, Port, Sherry and Feta.  Some of these names are off limits outside the EU too. That's because the Europeans have been known to use their economic muscle to persuade weaker trading partners to agree to prohibit the use of certain names in their countries. Which is why, for example, the name Champagne is verboten in South Africa.

South African law, however, does not have any protection for geographical indications.  As a result of this lack of protection at home, foreign authorities like those in the EU won't grant protection to South African names like rooibos. This problem, says the government, will be solved once the Intellectual Property Laws Amendment Act 2007 – or the 'Traditional Knowledge Act' (TKA) as it is better known - becomes law. But is this really the case?

The TKA is controversial and, although it has been approved by parliament, it hasn't yet been signed by the State President.   I'm not going to be examining  the controversy in this article, but it is worth noting that the TKA makes provision for the protection of a   'geographical indication', which is defined as 'an indication which identifies  goods as originating in the territory of the Republic or in a region or locality in that territory, and where a particular quality, reputation or other characteristic of the goods is essentially attributable to the geographic origin of the goods, including natural and human factors'. The TKA says that a geographical indication can be registered as a certification trade mark or a collective trade mark.

So, if and when the TKA comes into force, it will be possible for a name like rooibos to be registered as a certification trade mark or a collective trade mark. And once that happens, it may be possible to convince the authorities like those in the EU to grant protection to the name there, in which case no single party will be able to monopolise it through a trade mark registration. Problem solved!

So what exactly are certification and collective trade marks? A certification trade mark is one that certifies that any product bearing the mark is of a particular kind or quality, or that it has a particular characteristic, or that it comes from a particular region. In the case of rooibos, the name would presumably be registered in the name of an industry body that could certify that the tea was the real deal.  A collective trade mark is slightly different in that it indicates that the person applying the trade mark to the product belongs to a particular industry body. In the case of both types of mark, it's necessary to lodge fairly detailed information showing how the certification or membership works.

Both these forms of protection are already available under the Trade Marks Act, so there is no reason to wait for the TKA to become law.  It's not really clear why no industry body has managed to get a certification or collective trade mark registration for Rooibos, although news reports do suggest that some steps were taken but that the process wasn't completed. Meanwhile, a professor of intellectual property law has suggested that the authorities should declare Rooibos a prohibited mark in terms of Section 15 of the Merchandise Marks Act, following which it will be out of bounds completely. Once that happens, they should try to persuade foreign authorities like those in the EU to protect the term on the basis of this form of South African protection. In fact, the professor claims that he and others advised the government to do this years ago when rooibos became an issue in the USA, and that this advice was ignored.

It does look very much as if the rooibos issue has been sadly neglected by the various role players, which is why it's now such a mess!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions