6 February 2018

Politically (In)Correct?



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In recent times the international political arena has been fraught with alleged intellectual property violations – Eminem successfully sued the New Zealand National Party for infringing the copyright in his hit track "Lose Yourself".
South Africa Intellectual Property
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In recent times the international political arena has been fraught with alleged intellectual property violations – Eminem successfully sued the New Zealand National Party for infringing the copyright in his hit track "Lose Yourself"; incumbent US president, Donald Trump, upset Queen fans by using their renowned hit "We are the Champions" at one of the events leading up to the US national elections and his wife, Melania, was accused of blatantly plagiarising parts of one of Michelle Obama's speeches. Now it seems to be South Africa's turn.

Those following political news in South Africa will be all too familiar with the factions that have developed within the country's ruling party. One of the results of the disagreements between members of the upper echelons of the ANC is that Dr Makhosi Khoza, a previously high-ranking member of the ANC, split from the party to form a new political party with the hope of contesting the national elections in 2019.

Dr Khoza's new party, the African Democratic Change party (ADeC) has adopted a logo that has definite similarities to the ANC logo, both in terms of its colours and its features. See the respective logos below.

Soon after the launch of the new party, the ANC objected to the logo and said that it will report ADeC to the Independent Electoral Commission for what it is calling "a deliberate appropriation of its colours and logo" which, it says, have been used to confuse voters.

Dr Khoza immediately hit back on social media platforms, saying "When I resigned, I made it very clear that I'm taking the good ANC with me. All I took was a good legacy? The ANC does not own any colour and how it should be arranged".

From an intellectual property (particularly trade mark) law perspective, this is an interesting statement.

The issue of ownership of intellectual property rights in colours is a contentious one as it is extremely difficult for someone to claim exclusive rights in a single colour. Cadbury, for example, is involved in ongoing struggles to assert its rights in the colour purple featured on various of its chocolate and sweet products. This is because of which is known in intellectual property circles as the "colour depletion" doctrine, which recognises that in a particular competitive sphere there may be a limit as to the number of colours that are capable of being used.

It is also necessary to bear in mind that one of the founding principles of trade mark laws the world over is that in order to qualify for protection, a trade mark must be capable of performing the basic function of distinguishing the goods or services of one person from those of competitors.

Against this background it is easy to see why monopolising a single colour is difficult. But the situation with combinations of colours is slightly different as it is easier to claim rights in combinations of colours and even more so when the colours are part of a logo with other distinctive features.

The South African Trade Marks Register shows that the ANC has registered protection for various elements of its get-up and identity, including a black and white version of the logo shown above, and for a mark consisting of "a band of three stripes of equal width, running parallel to each other, having respectively the colours black, green and yellow".

It is clear that there are similarities between ADeC's logo and the ANC logo. As with all trade mark infringement and passing-off assessments, though, the two logos will need to be compared holistically to determine whether there exists a real likelihood of confusion amongst members of the voting public.

What will transpire, however, remains to be seen.

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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