No. 37148 GOVERNMENT GAZETTE, 10 December 2013 Act No. 28 of 2013 38 Intellectual Property Laws Amendment Act, 2013 38 (g) by the insertion after the definition of ‘‘Minister’’ of the following definition: ‘‘ ‘National Trust’ means the National Trust for Indigenous Knowledge established by section 28I of the Copyright Act and which functions as the National Trust for traditional terms or expressions in terms of section 43G;’’; and (h) by the insertion in subsection (1) after the definition of ‘‘trade mark’’ of the following definition: ‘‘ ‘traditional term or expression’ includes an indigenous term or expression and a derivative indigenous term or expression;’’. Insertion of Part XIIA in Act 194 of 1993 5 10 9. The following Part is hereby inserted in the Trade Marks Act, 1993 (Act No. 194 of 1993), after section 43: ‘‘Part XIIA CERTIFICATION TRADE MARKS AND COLLECTIVE TRADE MARKS 15 Application to traditional terms and expressions and geographical indications 43A. (1) Subject to Part XIIA, the provisions of this Act shall, except in so far as is otherwise provided in the said Part XIIA, and in so far as they can be applied, apply to traditional terms and expressions and geographical 20 indications. (2) Nothing in the sections contemplated in subsection (1) shall be construed as conferring any rights on any person in respect of intellectual property which is not a traditional term or expression. Registrable traditional trade marks 43B. (1) Subject to this section and 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, a traditional term or expression shall not be capable of constituting a trade mark. (2) A traditional term or expression shall be capable of constituting— (a) a certification trade mark or a collective trade mark; or (b) a geographical indication. (3) In order to be registrable as a certification or collective trade mark, a traditional term or expression shall be capable of distinguishing the goods or services of an indigenous community in respect of which it is registered or proposed to be registered, from the goods or services of another community or person, either generally or where the traditional term or expression is registered or proposed to be registered subject to limitations, in relation to use within those limitations. (4) Geographical indications or other marks of geographical origin may be registered as certification marks: Provided that the registrars of patents, copyright, trade marks and designs shall clearly indicate in the register that the certification mark is a geographical indication. (5) Geographical indications or other marks of geographical origin may be registered as collective trade marks: Provided that the registrars of patents, copyright, trade marks and designs shall clearly indicate in the register that the collective mark is a geographical indication. 25 30 35 40 45