IP ENSight | 7 February 2018

Trade marks and politics

by Tanith Robertson

It’s interesting how often trade marks and politics intersect, especially in South Africa!

In the most recent example, the issue was whether a political party that had broken away from the ruling African National Congress (“ANC”) – the African Democratic Change – had infringed the rights of the ruling party. As is commonly known, the logo of the ANC features the colours black, green and gold, as well as an image of a hand grasping a spear. The logo of the African Democratic Change also features the colours black, green and gold, as well as an image of a hand grasping a torch. 

        

It’s perhaps no surprise that the ANC raised an objection, especially if one considers that logos play a prominent role in countries where visual imagery is a big factor. It’s also quite clear that the abbreviation of African Democratic Change (“ADC”) is not too dissimilar from ANC. On the flip side, it is a fact that the colours black, green and gold are quite popular in South African politics. We’ll have to wait and see where this matter goes. 

We have been here before, of course. Many years back, the ANC breakaway party that eventually became the Congress of the People (“COPE”) faced all sorts of difficulties. It first announced that it would be known as the South African National Congress, until the ANC made it clear that it would object because of the similarity of the names. The new party then opted for South African Democratic Congress, but it discovered that there was already a political party registered under that name. It finally went for Congress of the People, but the ANC again took issue, alleging that the new party was associating itself with a very famous event in South African history – the 1955 Congress of the People – an event that is closely associated with the ANC. This matter actually went to court, with the court holding that the new party could use the name.

More recently, well-known businesswoman Mamphela Ramphele launched a political party called Agang SA. This caused problems because a civic body claimed that it had been using the name for a number of years and that it had already filed a trade mark application. 

These three stories suggest that South African politicians perhaps aren’t as familiar with trade mark law as they should be. So, what issues should they be aware of?

For starters, names and images can be registered as trade marks. The unauthorised use of a registered trade mark (or something similar) can be an infringement that can be punished by way of an interdict (injunction), legal costs and damages. They should also be aware that it’s very easy to establish whether there are any relevant trade mark registrations by way of a trade mark register search.

They should also know that trade mark registrations are not exclusively there for companies – celebrities, civic organisations, charities, government departments, parastatals and trade unions have all been known to register trade marks. There is no reason why politicians and political parties should be excluded. In order to file a valid trade mark application, there must be a genuine intention to use that trade mark and, in order to retain the registration, it must, in fact, be used. But that intention and that use can take place through a third party, known as a licensee. So, an entity does not need to be a commercial enterprise in order to obtain a trade mark registration.

Politicians should also know that even unregistered trade marks can sometimes be enforceable through the law of passing off. This means that a politician or a political party without a trade mark registration might be able to stop someone else using their name or image. Passing off is all to do with reputation (goodwill) and the likelihood of public confusion. So, reputations need to be considered. 

Politicians should be aware that there might be other legal issues around names and images. South African law does give some recognition to personality rights, or image rights as they are called in some jurisdictions. The code of the South African Advertising Standards Authority may sometimes come into play. Finally, South African election law prohibits “plagiarizing other parties’ symbols, name and acronyms”. 

I will end this article with a very different example of how trade marks and politics can intersect. It was recently announced that the Chinese car maker GAC will soon start exporting to the US a vehicle that it has been selling for many years in China and many other parts of the world. The company has, however, decided to rebrand the car for the US market, in order “to avoid the wrong connotation or misunderstanding”. The present brand name is Trumpchi, which, reportedly, is meant to sound like its Chinese name, Chuanqi – a play on the word “legendary”!

This article was reviewed by Gaelyn Scott, head of ENSafricas IP department. 

 

Tanith Robertson

IP | associate
trobertson@ENSafrica.com
cell: +27 72 608 6088

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