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This article forms part of the archives of Business Insider South Africa, which was published as a partnership between News24 and Insider Inc between 2018 and 2023.
- SA’s highest court recently declared laws prohibiting the possession, use, and cultivation of cannabis – in private – to be unconstitutional.
- That ruling is considered a first step toward the commercialisation of dagga in South Africa.
- But SA’s trademark laws prohibit the registration of names widely regarded as offensive or products with substances that cannot be traded – like dagga.
The Constitutional Court recently effectively lifted the prohibition on adults to possess, use and even grow dagga – as long as it is in private and for personal consumption.
SA’s highest court said the ban breached the right to privacy.
The court's decision is considered by some as a first step toward the commercialisation of marijuana, with the potential to boost agriculture and manufacturing.
See also: The US dagga industry grew insanely fast after decriminalisation — it now has more legal cannabis workers than dental hygienists
But those looking to venture into the weed trade, especially the manufacture of dagga products, could run into unexpected trouble – with trademark registration.
An application to have "dagga" in a product name, says Kareema Shaik, senior associate at Adams & Adams, may be refused by the trademarks registrar. Because even though private consumption and cultivation of cannabis is allowed, its sale is not, nor is the trade in any product that contains it
The Trade Marks Act does not allow the registration of a mark that's contrary to laws, or likely to offend any people. The mark "dagga" may no longer be objectively offensive following the Concourt ruling, but that may not matter.
See also: Smoking dagga is being decriminalised, but you can still be fired for it – maybe
What is considered moral or offensive changes with time though. For instance, the trademark application for local hit wine "Fat Bastard" was first rejected in 2007 on the basis that it was offensive, Shai says – but was later allowed after the applicants explained how the name was widely used without public complaint.
Another possible legal obstacle would be another section of the same law which prohibits the registration of a mark that describes the quality or characteristics of a product.
SA's first dagga beer, Durban Poison (which is also well known as a locally popular type of dagga) passed this hurdle by not containing actual dagga in the beverage, but hemp, which has little or no psychoactive effects. So a "dagga" product that contains no actual "dagga" could pass muster – but could also be considered deceptive.
See also: This is SA’s first dagga beer - now available for R18 a bottle at Spar
And those are just the issues in trademark law. One would would imagine that the local dagga industry would be as strictly regulated as the tobacco industry is in SA, says Shaik. Then there are also various other laws and regulations that would come into play on labelling, advertising, and even plant breeders' rights.
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