Foreign hawks circle over magical rooibos reputation

The red beverage made from South Africa’s rooibos plant has always been popular both in Africa and abroad. Research now indicates that its properties can help in curing several diseases, including diabetes. But, due to inadequate intellectual property rights protection, the name is open to abuse from foreign players trying to cash in on its growing demand. Tom Nevin reports.

The plants resemble an army of big green porcupines lining up for an attack, spines abristle and fiercely upright. In fact, they’re rooibos bushes and you will find them only if you venture into the Cederberg Mountains near the Western Cape hinterland town of Clanwilliam, some 250km north of Cape Town. They are becoming internationally famous for making a fragrant and refreshing tea, a wide range of health aids, and cosmetics. As the bush matures and the spines are harvested, they take on a reddish hue, thus the name rooibos (red bush).

Today, the plant’s popularity as a tea is being more than matched by its health boosting applications of medicine chest proportion, while rooibos cosmetics are adding to the global buzz. However, South Africans in the rooibos business could lose out commercially and financially on a massive scale because they lack the legal armour to protect their intellectual property and are outgunned financially by overseas marketers intent on cashing in on the rooibos name. The rooibos community is still bruised by a rough-house encounter with an American company that had registered and was using the name. That has been settled amicably, but new marauders are on the horizon.

Swedish botanist Carl Thunberg named the plant in an expédition to the area in 1772 and nearly 140 years later it was ‘rediscovered’ by Russian immigrant Benjamin Ginsberg.

Already in the tea business, Ginsberg recognised the tea’s potential and marketed it locally and in Europe as ‘Mountain Tea’. It was favoured by the discerning European palate for its subtle flavours. The discovery of health benefits followed. It was found to be free of caffeine, low in tannin and rich in anti-oxidants. In the last 80 years or so its reputation as an aid to health has grown with many new applications.

More recently rooibosbased cosmetics have joined the range of products. The craggy Cederberg is the only place on earth where rooibos (Aspalathus linearis) grows naturally. As a cash crop, the plant is cultivated commercially in farm fields and harvested where it grows wild in rocky meadows and on the roadsides. Inhabitants in and around the Cederberg make a living by cutting the free range stalks and selling them to the processing factories.

Generations of mainly Afrikaans farming folk in the area have used the plant in various ways – as a refreshment and in a wide range of medicinal purposes – and it was inevitable that its usage and reputation should grow globally. In recent months interest in the rooibos has accelerated in health research circles as a potential medical breakthrough in the treatment of diabetes that could turn out to be life-changing for millions of sufferers of the condition worldwide. “Rooibos has been found to be rich in aspalathin and rutin,” says Dr Johan Louw, a scientist at the South African Medical Research Council. “and when the two compounds are combined the results are remarkable.” (See box ‘How rooibos tea holds out hope for diabetics’)

South African growers, harvesters, marketers and distributors will have to step carefully, however, because the rooibos name, gaining homeopathic acceptability worldwide, is largely unprotected as an intellectual property. Even though the plant grows exclusively in South Africa, particularly in the Clanwilliam region, over a relatively small area, growers and harvesters are under constant threat of the name as a local intellectual property being usurped and registered in a foreign country. This is precisely what’s happening in the case of a French company applying to register a number of trademarks incorporating the terms “South African Rooibos”, and “Rooibos” last year.

“If the French company is successful, it would own the exclusive rights to the names of any rooibos products sold in France, a key market in the EU, the biggest export market for rooibos,” reports researcher Jana Marais in South Africa’s Sunday Times newspaper.

The rooibos community fought off a determined effort by an American health food organisation to retain possession of the name after registering it as an intellectual property US-wide. The irony of that situation was that South African rooibos growers and related product manufacturers would have been required to pay royalties on sales in the US. After a decade-long tussle, the American company relented and in 2005 the issue was settled amicably out of court.

Vulnerable to attack

If the bruising US dispute performed any useful purpose at all it was to expose the fact that South Africa’s unique indigenous products – rooibos, honeybush, hoodia and buchu, to name a few – are unprotected in international markets.

“Local industries have no legal basis to prevent any company anywhere in the world trademarking any of these terms as they have not registered the necessary trade-marks, often because of the costs involved,” reports Marais. “In many countries, including France, there is also no way to legally ensure that a product sold as honeybush is in fact honeybush. Because of their unique properties and geographical exclusivity, products such as rooibos and honeybush could qualify for protection as a geographical indication (GI) in the same way as other origin-based names such as Champagne, port and sherry. This would mean that ‘rooibos’ could only be used if certain standards upholding the link with the territory are met, for instance, that it was actually produced in Western Cape or Northern Cape.”

The rooibos industry in South Africa has gone some considerable way in trying to protect its name as a GI in the EU, but it is facing the boomerang effect of weak intellectual property protection in South Africa. EU regulations are clear that they will register non-EU country GIs, but such protection is conditional on the name, in this case rooibos, being protected in its country of origin, that is, South Africa. According to Cerkia Bramley, food law researcher at the University of Pretoria, because of the lack of a legal framework for protecting GIs in South Africa, the only option for local industries is to pursue domestic protection as either a collective or certification mark under the Trade Marks Act.

But that’s easier said than done. Getting domestic protection is just one step in a complex and time-consuming process to prepare a dossier for a GI application to the EU. “The process is complicated by vague rules and a legal quagmire,” says Soekie Snyman, coordinator at the SARC, and includes establishing detailed specifications and criteria to be met for a product to qualify as rooibos and appointing a certification body to verify that standards are met.

The department of trade and industry, however, maintains that South Africa’s existing Trade Marks Act provides safeguards for GIs. But beefing up the Act is clearly on the cards. Proposed amendments to existing intellectual property laws that deal with traditional knowledge were referred back to parliament by President Jacob Zuma last year for possible discussion. As it is, rooibos commands a healthy export market, but if South Africa intends to protect its share, let alone increase it, the rooibos community needs to step lively. The hawks are circling.