Rugby-mad South Africans may find the attempt by a South African company to 'ride on the coattails of' one of the best-known brands in world rugby, the Springbok brand, interesting. This case is relevant, given the inevitable IP issues that surround major sports tournaments. In this case, the 2023 Rugby World Cup.
The hijack
South African meat company "Eskort" recently placed a large billboard on a bridge which crosses a major highway on the way to South Africa's main airport, OR Tambo International in Johannesburg. The sign featured the colours green and gold, the South African flag, and the words GO SPRINGBOX: LOVE ESKORT.
The facts
Eskort, a well-known meat brand in the South African context, would have us believe that the term SPRINGBOX refers to a new cooler box that was launched. The cooler box was specially made for carrying Eskort braai meat (barbeque meat for the benefit of non-South Africans).
The reaction
As a result, the South African Rugby Union took the matter to the Gauteng High Court, where it secured an interim order requiring Eskort to cease the campaign. The to remove offending 'marks and get-up from all signage, marketing material, goods and/or products of any nature, including banners... posts and publications of the respondent's infringing marks on all and any websites, social media and other electronic platforms'.
Our understanding is that the case was brought as a matter of urgency and that the court was persuaded that interim relief was appropriate. News reports say that the merits of the case will be 'argued later'.
Media frenzy
As can be expected, the case generated significant media interest. commented, saying that 'the tongue-in-cheek reference to the national rugby team has the nation wondering whether Eskort will be shown a yellow card or if its conduct is deserving of a straight red.'
SA Rugby gets IP
The South African rugby authorities clearly understand commercial concepts such as branding, IP rights and sponsorship deals. SA Rugby CEO, Rian Oberholzer, is as saying that the organisation 'will do what we have to do to protect our rights and those of our highly valued partners, who are being shamelessly ambushed right now.'
Oberholzer further remarked that SA Rugby cannot allow unauthorised parties to leverage the Springbok brand "when our real supporters in corporate South Africa – who enable us to put the Springbok team on the field – are paying for the rights to use our intellectual property (IP).' He added that 'companies such as MTN and FNB...along with long-term supporters like CASTLE... have shown true support by backing the Boks financially... they and our broadcast partners pay for exclusivity in their area of business to use the Springbok brand and logo and have access to other assets."
Director of Rugby Rassie Erasmus also weighed in, asking the fans to "respect our sponsors who have carried us financially and have walked a long way with the team to this point."
Ambush marketing
For many, the term 'ambush marketing' springs to mind. Basically, ambush marketing occurs when a company that is not an official sponsor of an event tries to get some mileage out of the event. Ambush marketing, of course, became a huge thing in South Africa when the country hosted the 2010 FIFA World Cup, and a number of businesses bowed to pressure from FIFA to stop using expressions such as "World Cup 2010".
The South African authorities dealt with issues of ambush marketing by adding a Section 15A to the Merchandise Marks Act in order to declare a whole range of words, phrases, and images to be prohibited marks – these included the official World Cup logo, as well as terms like "World Cup 2010", "South Africa 2010" and "SA 2010".
Conclusion
Whether this case refers to ambush marketing in the strictest sense is debatable, but the SPRINGBOX case certainly deals directly with issues of trade mark infringement, passing off, unlawful competition and advertising laws. It will be interesting to see how this ends.
Reviewed by Gaelyn Scott, Head of ENS' IP Practice.
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