In recent times, traditional/indigenous knowledge has been a topic of interest within the intellectual property law domain. It is an area of law that has been left unmanaged for a significant number of years, however, this has changed as the government has enacted legislation aimed at its protection. One such piece of legislation is the Intellectual Property Laws Amendment Act of 2013 (“IPLAA”), which will make amendments to the Copyright, Designs, Patents and Trade Marks Acts once it comes into effect.

In particular reference to the Trade Marks Act of 1993, several amendments are made to the existing provisions. The IPLAA introduces the concept of ‘traditional trade marks’ and provides the requirements for registrable and unregistrable traditional trade marks. It introduces a national database for indigenous knowledge which will be overseen by a Registrar to facilitate the registration and recordal of traditional trade marks. For the purposes of use of traditional trade marks, a national trust and fund for indigenous knowledge are also established for the benefit of the source indigenous communities. The IPLAA also sets out the duration of protection to be afforded to traditional trade marks amongst other amendments.

Essentially it appears that the IPLAA intends on using the established laws of intellectual property to provide protection for traditional knowledge as either works created by the indigenous communities of South Africa and/or the derivatives thereof created by others. By making amendments to the various intellectual property acts, evidently the IPLAA envisages traditional/indigenous knowledge as having elements that can be grouped in line with either copyright, designs, patents and trade marks rights and that it can be seen as a commercial asset. As the IPLAA, however, is yet to come into operation it remains to be seen how the amendments to the Trade Marks Act and the other acts will play out.

In conclusion, before deciding on whether to register a traditional trade mark or in the case of a trade mark proprietor that has created a derivative of a traditional trade mark and is now uncertain as to the effect of the IPLAA, once it comes into operation, it is advisable to consult with an intellectual property law attorney to ensure that you are in compliance with the law.