The Liquor Products Act (60/1989) governs and regulates the labelling of wine products. The act includes specific regulations and a labelling guide which prescribe what can be incorporated on a label for wine sold locally. As regards wines manufactured for export, labels must comply with the destination country's requirements.
As wine is an alcoholic beverage, it is not governed by the existing R146 Regulations Relating to the Labelling of Foodstuffs, which typically govern non-alcoholic beverages. However, there is some overlap between the regulations and guidelines that govern the labelling of wine and those which govern the labelling of food and non-alcoholic beverages.
Section 22 of the wine labelling guide states that terms that could create a misleading impression are prohibited from being included on wine labels. The guidelines do not explicitly state what content is misleading per se, but Section 12 of the Liquor Products Act essentially prohibits the use of any name, word, expression, reference, particulars or indication in connection with the sale of a liquor product in a manner which creates or is likely to convey a misleading impression of the product's:
- composition or other properties;
- identity of manner; or
- place of production.
Trademarks constitute the name of a product and are therefore subject to Section 12 of the Liquor Products Act. The name of the wine or the trademark must not be misleading. How this is applied and enforced in practice may be tricky, as many wines have interesting names, including the names of people, places or things. Realistically, consumers will not believe that they have a 'fat bastard' in their Shiraz. Rather, a name like this may allude to the characteristic of a type of wine – namely, that it is full bodied.
Once a winemaker has devised a name that is not misleading, it is essential to ensure that the name is available to be registered and used as a trademark. Similarly, if the winemaker elects to adopt unique artistic components on the label, it can file nude label marks. These kinds of mark may exclude the estate's house brand and descriptive matter such as "preservative free" or "contains no sulphites", but may include interesting patterns or artworks that could serve as product, source and brand identifiers to consumers.
If a winemaker engages a third-party graphic designer to conceptualise a new logo or artistic work to place on a wine label, it must ensure that the graphic designer assigns it the copyright thereof. South African copyright law is slightly outdated and does not include a provision for ownership of copyright to automatically transfer to the commissioning party of a graphically designed artistic work. As such, ownership of copyright can be transferred only in writing.
Lastly, all labels for certified wine must, before printing, be submitted to the Wine and Spirit Board Label Committee for approval. 'Certified wine' refers to wine produced in accordance with the provisions of the Wine of Origin Scheme. Should the product be for export, it is recommended that an expert be approached to provide guidance on what can be included on labels in the specific destination countries. Similarly, winemakers should ensure that their trademarks, which may include label marks, and all copyright that subsists in the label complies with the wine labelling laws.
For further information please contact Karen Kitchen at KISCH IP by telephone (+27 11 324 3000) or email ([email protected]). The KISCH IP website can be accessed at www.kisch-ip.com.