South Africa: Africa: Naming Without Shaming

Last Updated: 12 December 2012
Article by Alicia Castleman

Most Read Contributor in South Africa, September 2018

In a recent article, which appeared in the September 2012 issue of the Harvard Law Review, it was emphasised that companies doing business in China should take a great deal of care when choosing brand names. The peculiar challenges faced by China include transliterations, the fact that the language consists of thousands of characters, and the fact that there are significant regional differences.

In considering these challenges, the article focussed on two examples of bad brand name choices faced by companies recently. First, there was  Clairol's decision  to call a deodorant Mist Stick which was not welcomed by the Germans as 'mist' means 'manure' in German. The problem faced by Clairol, in this instance, was the public's reluctance to purchase a deodorant alluding to a bad smell. Second, there was Mazda's decision to call a mini-van Laputa, which offended the people of Chile since 'puta' means 'prostitute' in Spanish.   Car manufacturers such as GM also faced a similar problems when it decided to call one of its models Nova, which means 'won't go' in Spanish. Considering the particular industry concerned, this brand name choice was arguable one of the worst brand name choices ever made.

The abovementioned examples illustrate that companies intending to expand their business into Africa will have to choose their brand names with caution, since the African continent comprises of more than 50 countries and somewhere between 2000 and 3000 languages.  Even though some of these languages are not widely spoken and relatively insignificant, others are spoken widely, like Arabic which is the lingua franca of North Africa.  Colonial languages like English, French and Portuguese are also spoken or understood in large parts of the African continent.

Ideally, a company would want to be able to sell its product or offer its service internationally and across the African continent under the same brand name. However, for the reasons outlined above, the reality is that companies are sometimes forced to use different brand names in different countries. This is far from ideal as it is much easier for a company to operate under one name and, most importantly, much easier for a company to build up a reputation in one name rather than in a number of names in different countries.  A company would also want to ensure that the name that it chooses is not embarrassing or undesirable and that it does not convey the wrong message in any of the countries where it will be operating.  A company would also want a name that is not descriptive of its product or service in any of these countries, and is not banal like a purely laudatory term.

The reason why a company would prefer a name of this nature is to ensure that its name qualifies for protection as a trade mark, since a descriptive, offensive or laudatory brand name will not be registrable as a trade mark. Without a trade mark registration a company will not have exclusivity to its brand name which, in effect, means that third parties will be able to use it.

It is, therefore, crucial for companies to conduct proper research before choosing a brand name. The number of online searching tools, currently available, has made research of this nature much more accessible. The reality of such research is that it may well require a company to make some hard decisions, for example, deciding that the unfortunate meaning in one relatively small language can be disregarded.

Once a name that is not descriptive, offensive or laudatory has been identified, for example KODAK, the next phase of choosing a brand name is the trade mark clearance phase. This phase basically entails conducting trade mark availability searches to ensure that the name does not conflict with any existing trade mark registrations.  This phase usually involves instructing an attorney, as searching of this nature cannot be conducted by amateurs.  Trade mark searches of this nature also involve a language aspect since translations of brand names can be very relevant.  For example, if a brand name is an English word and there is a trade mark registration in Kenya for the Swahili translation of that word, it could well be a problem because English is widely understood in Kenya. 

In South Africa, specifically, we have seen examples of how translations can be relevant in a multilingual country. In one case a court held that a trade mark registration for the name Getaway for magazines was infringed by a magazine called Wegbreek because Wegbreek is an Afrikaans translation of the English term Getaway, with the result that a number of consumers might be misled into believing that Wegbreek is the Afrikaans language version of Getaway magazine.  However, in another decision, a court held that the wine trade marks Chameleon and Ulovane would not be confused because, although 'lovane' means chameleon in Xhosa, not too many Xhosa speakers drink wine.

The global village has increased the complexity of choosing a brand name. Therefore, if a company chooses a brand name, consideration must be given to the meaning and/or translation of the brand name in the relevant countries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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