Beating around the bush: Rooibos’ rise into a geographical indicator

The plant, formally known as aspalathus linearis but colloquially known as “rooibos” (the Afrikaans term for “red bush”), has been utilized by indigenous peoples for millennia, particularly the Khoi and San. For years, rooibos has been a healthful, aromatic tea for people all over the world, as well as a valuable economic resource for South African farmers and processors.[1]

Rooibos is only found in a tiny area of the Western Cape province’s Cederberg mountain range, and it requires special geographical conditions to flourish. The climate is primarily desert, with hot, dry summers and mild, moist winters. Many sandstone and shale rock formations may be found there.[2]

In 2014, rooibos received status as the first geographical indication (GI) for a South African product other than wine and spirits.[3]

In 1968, a South African mother accidentally stumbled upon the soothing properties of rooibos when she placed leftover rooibos tea in her baby’s bottle. She continued researching rooibos and published a book called Allergies: An Amazing Discovery, which was published in 1970.

After the success of her book, Ms Theron launched a company called Forever Young. The company produced a line of rooibos infused skincare products. Ms Theron’s new adventure was a success, especially in North America. Ms Theron filed a trademark application for the word “Rooibos” as it related to use in skin care products in the United States in 1993. Ms Theron’s application was granted in 1994. The success of the application was concerning to Rooibos Limited (a South African Company), it was concerned that the trademark of the word rooibos being owned by one company would have a negative effect on other companies. With the help of the South African government, Rooibos Limited objected to Forever Young’s rooibos trademark.

The dispute between Rooibos Limited and Forever Young went on for years with little attention, until Ms Theron retired from Forever Young in 2001 and sold the trademark for $10 to Burke International.

After Burke International obtained the trademark, they went on the offensive and spent money on protecting the mark. Burke International sued a number of companies and small cafes across the US for the use of the “Rooibos” name. Burke International wanted fees for the use of the mark or the companies had to stop using the mark.

After a decade of fighting, Rooibos Limited and Burke International reached a settlement. Both companies agreed to cancel their trademark registrations on the right to use the word “Rooibos”. The settlement meant that in the US the word “Rooibos” had become generic and thus open for anyone to use.

In 2013, an application was made by a French company to register Rooibos as a trademark in respect of beverages in France.[4] The application attracted the attention of the South African government which strongly opposed the application and exercised various legal options to strengthen the protection of the Rooibos name in SA. The final Merchandise Marks Act prohibition notice on the labelling of Rooibos products and rules of use for ‘Rooibos’, ‘red bush’, ‘rooibostee’, ‘rooibos tea’, ‘rooitee’ and ‘rooibosch’.[5] The notice set out the terms under which the Rooibos mark could be used — the name ROOIBOS can only be used to refer to the dry product, infusion or extract that is 100% pure Rooibos — derived from AspalthusLinearis — and that has been cultivated or wild-harvested in the geographic area as described in this application.

Rooibos tea was granted geographical indication (GI) status in the European Union in 2014. This gave South African Rooibos tea manufacturers complete ownership of the Rooibos name.

What’s a GI?

“A geographical indication (GI) is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. In order to function as a GI, a sign must identify a product as originating in a given place.”[6]

Why is the GI status important?

1. Geographical indication (GI) registration protects the name against misappropriation and imitation, allowing everyone involved in the rooibos sector in the region — from farmers to exporters — to use it without fear of legal action in international markets.

2. Because the GI connects an area to a product, it can be used to promote other activities such as tourism.

3. A GI increases the value of rooibos, and a GI would provide growers and producers greater control.

4. Because rooibos is grown in a delicate ecology, GI registration will aid in the preservation of the region’s unique biodiversity.

5. A GI includes explicit criteria for how a product should be made, ensuring that all rooibos products are of the same high quality.

Rooibos was designated as a Protected Designation of Origin (PDO) in May 2021, giving it even more protection.[7] The first African product to be granted PDO status is Rooibos. A PDO designates a product that comes from a specific location, region, or country, and whose quality or characteristics are primarily or exclusively due to that location with its inherent natural factors (raw materials, environmental characteristics, location) and human factors (traditional and craft production), and the production, transformation, and elaboration phases of which all take place within a defined geographical area, in accordance with rigid production regulations established in the procedural guidelines of production

Both PDO and PGI labels serve to guarantee certain product qualities as well as a link between those qualities and the location where the product is manufactured. The PDO has a stronger tie to the delimited area because the entire production of the product takes place there, whereas a PGI product must have at least one of the production steps that take place there.

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[1] https://www.wipo.int/ipadvantage/en/details.jsp?id=2691#:~:text=Rooibos meets all of the,result of the unique geographical

[2] https://www.wipo.int/ipadvantage/en/details.jsp?id=2691#:~:text=Rooibos meets all of the,result of the unique geographical

[3] https://www.wipo.int/ipadvantage/en/details.jsp?id=2691#:~:text=Rooibos meets all of the,result of the unique geographical

[4] https://www.golegal.co.za/rooibos-ip-geneva/

[5] https://www.gov.za/sites/default/files/gcis_document/201409/36637gen722.pdf

[6] https://www.wipo.int/geo_indications/en/

[7] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2021.190.01.0088.01.ENG&toc=OJ%3AL%3A2021%3A190%3ATOC

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