A sweet intoxication July 2016

By MARCO VATTA, Published in Intellectual Property

Benjamin Franklin's words "Wine; a constant proof that God loves us, and loves to see us happy" is testament to wine enthusiasts' euphoria when savouring their favourite wine. There is much excitement when one hears the crisp sound of the cork being ejected from the neck of a beloved bottle of vino, knowing that the final product started off as nothing more than humble grapes. If you are fortunate enough to attend a wine tasting, consider the lyrics from the song The Music of the Night, which reiterates the experience to be had. "Let your mind start a journey to a strange new world, leave all thoughts of the world you knew before...floating, falling, sweet intoxication...savour each sensation".


Wine making has been around for many centuries (millennia in fact), the process not only being an art but also a science which requires little human intervention due to the natural processes at work. In general, there are five basic steps involved: harvesting, crushing and pressing, fermentation, clarification, and aging and bottling.

According to a press release from the International Organisation of Vine and Wine, dated October 2015, South Africa ranked as the eighth largest wine producing country in the world, with 11,3 million hectolitres (one hectolitre represents 100 litres) vinified in 2014. Of this, South Africa consumed an estimated 375 million litres of wine, or 7,5 litres per capita.

However, even though we as a nation are passionate wine drinkers, I am certain that there are only a handful of South Africans who have given the slightest consideration to what intellectual property rights come to the fore in viticulture and viniculture. At each step of the wine making process, products of the human intellect or creations of the mind are at play, and the intellectual property rights that come into existence may require legal protection to maximise benefit to the owner.

Consider the scenario in which the viticulturist has developed a new type of grape variety by means of crossbreeding two known grape varieties or by some other form of genetic engineering. In order to protect the grape variety, an application for a Plant Breeders Right must be lodged, provided the variety is new, distinct, uniform and stable. The application can only be lodged by:

  1. the breeder: the person who bred, or discovered and developed the variety; or
  2. the breeder's employer if the variety was bred, or discovered and developed during the course of employment; or
  3. the successor in title to the persons named above.

A further scenario where consideration should be given to intellectual property rights would be where the winemaker has designed a bottle for the product, unlike any other bottle available. In this case, South African law provides for both aesthetic and functional design registrations. The bottle can be registered as a design provided that it is novel and original (aesthetic design) or new and not commonplace in the art (functional design). The application for a design has to be lodged no more than six months after the bottle is first released, disclosed or sold, otherwise the design will not be considered "novel".

Intellectual property may also be protected by means of a patent. A patent provides for the grant of an exclusive right to prevent others from exploiting an invention for a fixed period of time but, in return, the patentee is required to disclose fully the invention in the patent application documents (and hence to the public once granted). This means that the owner of the intellectual property is able to earn recognition or financial benefit from a new invention whilst the disclosure in turn directs the progression of the technology. Examples of such an invention may be an improved process for the vinification of wine, an improved bottling process or even a new mechanical device capable of pruning vines in a manner that prevents damage to them.

In terms of s25(1) of the Patents Act, a patent may be granted for an invention provided that it is new, involves an inventive step, and is capable of being used or applied in trade or industry or agriculture.

A final example that is of importance is the badge or symbol that the winemaker uses in relation to his goods to inform the public that he is the source or provider of these specific goods. This badge or symbol is known as a trade mark. Trade mark rights are enforceable whether or not they have been registered. If the trade mark has been registered then reliance may be made on the provisions of the Trade Marks Act to enforce the trade mark should it be infringed by a third party. If the mark has not been registered, then the proprietor may claim passing off. This is where a third party misrepresents that its goods or services are in some way associated with those of another party which has developed goodwill in the goods in question and, as a result, there is a likelihood that consumers may be confused.

These are but a few examples of the way in which intellectual property rights may come into existence, not only relating to a bottle of wine as such but to all manner of goods which are the product or creation of human intellect. It is for this reason that careful consideration should be given to the existence of intellectual property at each stage of the development and manufacturing of any product, to ensure that the owner is afforded the maximum opportunity for exploitation and protection of the intellectual property at play, bearing in mind the nature of the intellectual property and the territorial nature of the rights granted.

Vatta is a candidate attorney with Spoor & Fisher. The supervising partner was David Gilson.