South Africa: IP, Religion, Culture And Politics

Last Updated: 7 August 2017
Article by Gaelyn Scott

Most Read Contributor in South Africa, July 2017

Colleagues and clients alike often comment on the varied, topical and evolving nature of my field of expertise, IP law, as evidenced from my articles over the years. IP is a field of law that's forever growing, highly relevant, often fascinating and which deals with everyday tangible issues, brands and products that we encounter in the marketplace and media. Three recent news stories show just how much IP intersects with other worlds.

Religion and charity

It's been reported that the Roman Catholic order the Missionaries of Charity, which is associated with arguably the world's most famous nun, Mother Teresa, has registered, as a trade mark, the blue and white colour combination (three blue stripes, one thicker than the other two) that appeared on the sari or habit that Mother Teresa wore every day for 50 years, and which is still worn today by nuns in the order. The colour combination has apparently been registered as a trade mark for clothing and textiles, as well as stationery and charitable services. It's reported that leprosy patients in Kolkata weave some 4 000 saris featuring the colour combination every year, and that these saris are distributed to nuns worldwide.

The order apparently sought trade mark registration for defensive purposes rather than commercial ones. It seems that a number of parties have been falsely seeking to associate themselves with the Missionaries of Charity – a school, a bank, several shops in Kolkata that sell Mother Teresa books and memorabilia, and fundraisers. It's been announced that the order will sympathetically consider requests to use the trade mark from those who are proposing to make non-commercial use of it.

Colours and colour combinations can, of course, be registered as trade marks, but it is very difficult. Not surprisingly, the authorities take the view that colours should be available to all, and it is only in exceptional circumstances where a colour or colour combination that has, in fact, become solely associated with one enterprise in a particular industry will be granted a monopoly. The news reports do intimate that the Indian authorities may have been quite lenient when it came to the applications filed by the Missionaries of Charity.

Culture and fashion

In South Africa, there's been a media storm surrounding Louis Vuitton's adoption of culturally significant Basotho blanket designs in men's fashion items and garments that apparently sell in South Africa for an eye-watering ZAR33 000. The question being asked is whether this is cultural appreciation or cultural appropriation. As the following quotes show, South African designers feel very strongly about the matter:

"African artists are also artists and designers ... it is not just something blank that everyone has the right to come and take."

"We are angry because we feel exploited ... it's not just that they are inspired by us ... that's a compliment, but you need to take it a bit further and involve us otherwise its theft."

"Yes, Europe designer houses are looking at Africa and taking from our cultures ... it shows the world is interested in what Africa has to offer ... the downside is, of course, they are making a profit out of it."

"There are more respectful ways of doing it, for example, collaborating with local people who actually produced those products."

The use of the Basotho blanket design raises issues of trade mark law and design law – both offer opportunities for protection. But it also raises the vexed and controversial area of protection for traditional knowledge.

Politics and economics

In the UK, a dispute is brewing between the makers of the Toblerone chocolate bar, Mondelēz, and a budget store chain called Poundland. This relates to the fact that Poundland plans to bring out a Toblerone lookalike product. Although the news reports don't specify what the dispute is about, it's well known that there are trade mark registrations for the triangular shape of the Toblerone bar. Product shapes can be registered as trade marks, but this is difficult and generally requires compelling evidence of acquired distinctiveness on the part of the proprietor.

The background to this story is interesting. In the UK, the highly popular Toblerone bar has shrunk in size quite significantly over the past year, with the 400g bar going down to 360g, and the 170g bar going down to 150g. This is widely perceived to be a consequence of the Brexit vote in 2016, and the subsequent drop in the value of the pound. Because fast-moving consumer goods companies are keen to avoid price rises, they now adopt a practice of down-sizing the product in ways that are often hard to notice, a practice that is sometimes referred to as "shrinkflation". In this case, the size reduction involved increasing the spaces between the peaks. Poundland's proposed product features double peaks and is called Twin Peaks.

A spokesman for Poundland is quoted as follows: "Poundland shoppers are savvy and the change in their favourite chocolate bar last Christmas didn't go unnoticed. That's why we've created a new £1 alternative for them – the size they wanted, with a British taste, and with all the spaces in the right places."

As I said at the outset, IP and its applications are fascinating!

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