No. 37148 GOVERNMENT GAZETTE, 10 December 2013 Act No. 28 of 2013 40 Intellectual Property Laws Amendment Act, 2013 40 (6) No right in respect of a derivative indigenous term or expression or knowledge provided for in the Intellectual Property Laws Amendment Act, 2013, shall be eligible for registration unless— (a) prior informed consent has been obtained from the relevant authority or indigenous community; 5 (b) disclosure of the indigenous cultural expressions or knowledge has been made to the Commission; and (c) a benefit-sharing agreement between the applicant and the relevant authority or indigenous community has been concluded. (7) If an indigenous community has established a community protocol, 10 the interaction with the indigenous community contemplated in subsection (6) must take such community protocol into account. (8) A traditional term or expression or geographical indication shall only be registrable as per this section if— (a) the traditional term or expression or geographical indication is a 15 derivative indigenous term or expression or geographical indication and was created on or after the date of commencement of the Intellectual Property Laws Amendment Act, 2013, and the community from which the term or expression, or a substantial part thereof originated, is or was an indigenous community when the term or 20 expression was created; or (b) the traditional term or expression or geographical indication was passed down from a previous generation. Unregistrable traditional trade marks 43C. (1) The following traditional terms and expressions and geographical indications shall not be registrable as trade marks, or, if registered, shall, subject to any rights in respect of a traditional term or expression acquired by any person prior to the commencement of the Intellectual Property Laws Amendment Act, 2013, and subject to the provisions of sections 3 and 70, be liable for removal from the register: (a) subject to sections 42 and 43, marks that consist exclusively of a sign or an indication which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, or other characteristics of the goods or services, or mode or time of production of the goods or of rendering of the services; or (b) subject to section 43B(3), marks that consist exclusively of a traditional term or expression and which in the bona fide and established practices of the trade has become indicative of or is generally associated with the goods or services in respect of which the mark is sought to be registered. 25 30 35 40 National Database 43D. (1) The National Database for Indigenous Knowledge contemplated in section 28C of the Copyright Act shall constitute and function as a sub-register within the register of trade marks in respect of traditional terms and expressions and geographical indications for purposes of this 45 Act, in the manner provided for in the said section 28C of the Copyright Act. (2) Traditional terms and expressions or geographical indications— (a) contained in applications referred to the Council and accepted in terms of subsection (14); and 50 (b) contained in applications accepted in terms of sections 42, 43 or 43D, shall be recorded in the database. (3) For the purposes of this Act, an indigenous community is deemed to be a juristic person. (4) Any— 55 (a) natural person who created the traditional terms and expressions or geographical indications; (b) natural or juristic person authorised to act on behalf of an indigenous community, or on behalf of an individual; or