South Africa: IP: Stripped Down To The Bare Essentials

Last Updated: 25 February 2013
Article by Lauren Frizelle

Most Read Contributor in South Africa, September 2016

Did you see the recent Carte Blanche piece called 'Stripper Scam' (first shown on 4 February 2013)?  The one with 'bare-butt butlers' showing off their assets at 'bachelorette parties'.  The one where presenter Devi Sankaree Govender subjected viewers to a host of dreadful puns: the villain with 'bare-faced cheek', finally being 'caught with his pants down'.  If so, you may have thought anything from 'Exciting times these, so much choice' to 'Gosh it's a tacky world'.  But the chances are that you didn't once think intellectual property (IP). You should have, though, because - as is so often the case - IP played a major role in the story.  And Devi even gave you a very strong clue, when she said that one of the parties had consulted with a trade mark attorney.

If you missed the show, let me tell you that it was about a stripper business (clothes not paint!) called Exotic Dancers, which was scamming the public in all sorts of ways, for example by advertising on its website strippers who had long since left the firm's employ, to taking deposits for strippers and then not sending anyone to appear on the night.  But the man behind Exotic Dancers was also trying to ride on the back of his main competitor, a lady who trades as  ( I am speaking metaphorically here, of course, although I have to concede that a literal interpretation is not only possible, but indeed quite plausible!).

So where's the IP in this, you ask?  Well, complained that Exotic Dancers was causing consumer confusion.  It was doing this by using a website that was very similar to the site of, having apparently copied both the logo as well as the site's overall 'look-and-feel' or 'get-up' (don't worry, there'll be no smutty puns from me in this article!).  This, of course, brings us into the realm of trade mark law.  But because apparently never registered its name or logo as a trade mark, there's no issue of trade mark infringement.  A costly oversight, I fear, because a trade mark registration is a very powerful weapon. And there's absolutely no reason why a stripper business should not register its name, logo or identifying feature (a mark) as a trade mark – yes the Trade Marks Act does prohibit the registration of marks that are contrary to public policy or likely to give offence, but the authorities tend to be fairly broad-minded in these matters, so provided the mark isn't totally obscene or ridiculously graphic it should be OK. And the mere fact that the mark is used in relation to a business that may not be regarded as totally wholesome shouldn't be an obstacle either - we recently reported on an Australian case involving the trade mark of a brothel, so tacky marks seem to be all the rage!

Forgetting to register your mark as a trade mark is serious, but it's not always fatal.  That's because a mark that has been used on a considerable scale and has acquired a reputation or goodwill may be protected if a competitor - through the use of something similar - manages to cause confusion.  This protection will be through the common law action of 'passing off'.  A passing off case is, however, not easy to run because you do need to provide evidence of sales and advertising expenditure figures in order to establish a reputation or goodwill.  As such, it's always better to have a trade mark registration in the bag.  But it's clear that if can prove a reputation or goodwill in its logo or get-up, as well as a real likelihood of confusion, it may have a passing off case.

Passing off is itself a species of a very broad area of law called unlawful competition.  It's an odd concept if you think about it, because we live in a free market society where competition is not only lawful, but in fact positively encouraged, even in the Constitution.  Yet there are limits, and conduct that oversteps the boundary of acceptable competition is regarded as unlawful competition.  Generally, the boundary will be crossed when the competition is unfair or dishonest, and when it offends against the general sense of justice of the community.  

Competition may also overstep the mark if there's a bad motive, for example if the competition is intended to bring down a competitor rather than to create a business.  In the famous case of Bress Designs (Pty) Ltd v GY Lounge Suite Manufacturers (Pty) Ltd the court said this: 'In my view a clear line should be drawn between acts of interference with the interests of another when the object is the advancement of a person's own interest and such acts whose sole or dominant purpose is the infliction of harm for its own sake.'  There was certainly a suggestion in the Carte Blanche piece that the man behind Exotic Dancers was determined to destroy the business of because of a falling out.

Another IP right that might be relevant in the case of the strippers is copyright.  Copyright is the right that you have in all sort of things including logos, photos and written works, even those that are totally banal.  In the case of copyright, the right arises automatically once the work is created, so no registration is necessary, or indeed possible.  The work is infringed if someone else copies a substantial part of it, although if someone coincidentally comes up with the same thing there's no infringement.  As a website invariably consists of logos, photos, and words, may possibly have a claim for copyright infringement.

So there you have it, a whole lot of IP in ... well, very little. 

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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