Size really does matter
As the new Regulations Relating to the Classification, Packing and Marking of Dairy Products and Imitation Dairy Products Intended for Sale in the Republic of South Africa (the Regulations) came into effect on 28 March 2016, it is essential for traders in the dairy industry to review its product packaging in order to ensure that the new Regulations are complied with.
The packaging of a product is a very important advertising tool. However, the new Regulations regarding the marking of containers and outer containers introduce new requirements that need to be complied with. In particular, Regulation 25(7) outlines requirements for letter sizing on packaging and states that the only words or expressions that may appear bigger than the class designation on a container or outer container are registered trade marks or registered trade names.
A class designation refers to the type of dairy product or imitation dairy product such as “low fat milk” or “coffee creamer”. Therefore, any word or expression that is bigger than the descriptor of the product must be a registered trade mark or registered trade name. If there is use of a trade mark or trade name that is not registered on the packaging and the letters or expressions of such unregistered trade mark or trade name are bigger than the class designation, it is a contravention of Regulation 25(7)(a).
Traders in the dairy industry will have to amend their packaging to conform to the new Regulations if it does not at present. If matter on packaging that is not a registered trade mark or registered trade name is bigger than the class designation, the lettering will have to be made smaller or, if such matter would qualify as a trade mark, application should be made to register it as a trade mark.
In view of the fact that the registration of a trade mark usually takes longer than two years to complete, the Department of Agriculture, Forestry and Fisheries (DAFF) issued a dispensation on the relaxation of the letter size requirement in terms of the new Regulations on 17 September 2015.
The dispensation permits traders in the dairy industry to indicate trade marks and trade names that are still in the process of registration in a letter size bigger than the class designation provided that written proof is available on request that application for the trade mark or trade name in question was filed with the Registrar of Trade Marks before 28 March 2016.
From 28 March 2016, the permission will only be applicable if it can be shown on request that application for registration has been made of such trade mark or trade name prior to the launch of the dairy product or imitation dairy product in question.
Spoor & Fisher offers the service of reviewing packaging for clients to determine whether or not any Regulations are being contravened.