AI and Autopilots: Why Good Lawyers (and Pilots) Still Hand Fly

AI and Autopilots: Why Good Lawyers (and Pilots) Still Hand Fly

By Darren Olivier   Wednesday, July 09, 2025   No comments:

In the hangar of innovation, a quiet revolution is underway. Light aircraft pilots are letting go of the yoke. Lawyers are letting go of the keyboard. Autopilots and AI are doing the flying – and drafting. But before you hang up your headset or your robes, here's why knowing how to fly (or draft) the old way still matters (a lot), especially if you're doing it over Africa.

The New Co-Pilot in the Sky: Autopilot

Let’s start 5,000 feet up. Modern light aircraft, from Cirruses to Slings, now come equipped with autopilots sophisticated enough to follow flight plans, hold altitudes, and even shoot GPS approaches in bad weather. But here's the thing: no matter how clever the box is, the human pilot must still know how to fly manually and be current and adept at it.

Why? Because tech fails. Power goes out. Systems get confused. Terrain gets close. Weather throws tantrums. It’s at these moments, when the autopilot disengages that the aircraft buffets and the passenger turns green when pilots earn their wings.

Hand-flying is not obsolete. It’s foundational. And it keeps the pilot sharp even when the autopilot works flawlessly, like the muscle memory of pulling back at rotation speed or trimming out on climb. The function of the autopilot is to create a safer, better pilot because it enables him or her to focus on other things like weather, engine performance and importantly, decision-making.

Enter the Lawyer’s AI Autopilot

Swap propellers for pleadings, and you’ll find that the same is true for the modern lawyer. Tools like ChatGPT, Harvey AI, Copilot (love the name), Luminance and their ilk are doing everything from reviewing contracts to drafting court documents. They're faster than juniors, don’t need lunch breaks, and can “work” in 100 jurisdictions at once. But much like autopilot, they aren’t the pilot. 

You still need a lawyer who understands the client’s goals, the court’s quirks, and the broader context. AI can spot precedent but doesn’t know the judge’s mood or the client’s unspoken fear. It can’t yet navigate the nuance of African customary law or the dance of cross-border enforcement on the continent. Like flying, the lawyer still needs to know how to fly manually, be current at it and adept.

AI enables the lawyer to focus on client needs, people management and importantly, decision making.

Embrace the Autopilot – But Keep Your Hands Ready

Here’s the kicker: we should embrace both. Autopilot has made flying safer and more accessible. More people can fly further, more reliably, with better outcomes. AI promises the same for law, access to justice, faster resolution, lower costs, better decision-making.

In Africa, this is not just a convenience, it’s a strategic leap. We’re often not burdened by legacy systems, and that means we can jump straight to the future. Just like we leapfrogged landlines with mobile phones, we can leapfrog outdated, expensive legal systems and empower courts, firms, and clients through AI.

Imagine rural entrepreneurs getting legal advice in their language, instantly. Imagine overburdened courts speeding up decisions through automated summarisation. Imagine firms in Lagos or Lusaka with global reach using tech that was once only available to magic circle firms.

The African Edge: Smart Leapfrogging

But only if we fly right. That means training our lawyers to use AI well and to think critically. Just as pilots must learn both autopilot and stick-and-rudder flying, lawyers must master both AI tools and legal fundamentals. It's not enough to press buttons. You need to know when the AI is wrong, and how to correct it.

And here’s a sceptic’s objection worth airing: Isn’t AI just another shiny toy for big firms? Not if we embed it wisely. With open models, mobile-first strategies, and localised training, AI can be Africa’s legal co-pilot, a force multiplier, not a margin eater or job taker.

Final Approach: Tech Makes Us Better, If We Let It

So what’s the takeaway?

Whether you’re climbing through turbulence over the Karoo or navigating a cross-border licensing dispute, tech isn’t replacing you, it’s making you better. But only if you keep your hands on the yoke. Lawyers and pilots must know when to switch off the autopilot and take control.

In both professions, judgment matters. Skill matters. Context matters. The best practitioners are those who use their tools but are never ruled by them.

African lawyers and pilots can compete and beat the best in the world, not despite our challenges, but because we embraced innovation early, ethically, and fearlessly. 

Now, please stow your tray tables and prepare for landing. The future is on final approach.

Darren Olivier (lawyer by day, pilot by weekend commuting sustainably) 

Image cred: By https://adoption.microsoft.com/copilot/, Fair use, https://en.wikipedia.org/w/index.php?curid=79572712

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SOUTH AFRICA: THE "REAL" OWNER OF A TRADE MARK TRIUMPHS: BUT WHO WILL HAVE THE LAST LAUGH?

SOUTH AFRICA: THE "REAL" OWNER OF A TRADE MARK TRIUMPHS: BUT WHO WILL HAVE THE LAST LAUGH?

By Afro Leo   Tuesday, July 08, 2025   No comments:

The Supreme Court of Appeal decision in Barel v Popular Trading, perhaps not surprisingly, involved a split outcome.  Not surprisingly, as the two judgments each embraced, with respect, two laudable and eminently rational yet competing approaches.  On the one hand, the view that a registered trade mark proprietor should be protected, and, on the other hand, that the "real" proprietor of a trade mark, the originator, should be protected.  

The facts, briefly, were that the ENRICO COVERI (EC) trade mark was the name of an Italian clothing manufacturer.  His mark was registered in South Africa but allowed to lapse.  Barel, a third party, later registered the trade mark ENRICO COVERI in his name.  Both Barel and the first respondent, Popular Trading (PT), imported goods bearing the ENRICO COVERI mark into South Africa.  Barel relied on the Counterfeit Goods Act to have the goods of PT confiscated.  The central question before the court was the nature of PT's goods.  This resolved itself in practical terms to the issue of the meaning of the phrase “counterfeiting”:

“(b) means, without the authority of the owner of any intellectual property right subsisting in the Republic in respect of protected goods, manufacturing, producing or making, or applying to goods, whether in the Republic or elsewhere, the subject matter of that intellectual property right, or a colourable imitation thereof so that the other goods are calculated to be confused with or to be taken as being the protected goods of the said owner or any goods manufactured, produced or made under his or her licence;”

The minority judgment (paragraph 23) reached the following conclusion:

“Even though Popular Trading’s imported goods are not ‘identical’ to Mr Barel’s goods, the fact that they bear a mark that is ‘the subject-matter’ or a ‘colourable imitation’ of Mr Barel’s registered trademark, would be enough to constitute counterfeiting. This is so because one could engage in counterfeiting merely by using the protected trademark, whether on the same goods or different goods. To be ‘the subject-matter’ means simply that the mark on the goods from Popular Trading must be identical to Mr Barel’s trademark. And to be a ‘colourable imitation’ means that it must look like Mr Barel’s trademark, so that it must be ‘calculated to be confused with’ or at least be of such a nature that it is ‘taken as being’ the registered trademark"

The majority judgment (paragraph 44) found the following:

"But, the above interpretation would ignore or exclude the meaning of the word ‘calculated’ in the definition of ‘counterfeiting’. It is a long-standing rule in the interpretation of legislation that every word in an enactment should be given a meaning and not be treated as tautologous or as superfluous. The Legislature, by using the word ‘calculated’ in the definition of ‘counterfeiting’, required the confusion to have been the result of planning, design or intention.  Mens rea in the form of dolus is accordingly imported into the definition of ‘counterfeiting’ by the use of the word ‘calculated’. Thus, for B to be said to have committed counterfeiting, it must be established that B intended his goods to be confused with A’s protected goods or that he intended his goods to be taken as B’s protected goods. In other words, B acted with an intention to deceive. Without such intention, there cannot be counterfeiting under paragraph (b) of the definition of ‘counterfeiting’. This interpretation of ‘counterfeiting’ is consistent with what this Court has previously said about the meaning of ‘counterfeiting’, namely that ‘it involves deliberate and fraudulent infringement of trademarks’. In R v Johnstone Lord Nicholls described counterfeiting as fraudulent trading, while Lord Walker said that counterfeiting ‘involve[s] deliberate, and generally fraudulent, infringement of various intellectual property rights’."

PT thus triumphed.  But what about the future?

In terms of the practical impact of the judgment, PT would not necessarily have much to celebrate.  This is on account of the fact that both the minority and majority judgments by implication found that the goods of PT were infringing - which is a basic requirement of the Counterfeit Goods Act.  All things being equal, Barel would seemingly thus be able to move against PT on the ground of section 34(1)(a) of the Trade Marks Act.

It would be up to EC to then attack Barel's registration.  The use of EC's mark by way of the import activities of PT does not predate Barel's (alleged) use/filing date.  Consequently, EC would not be able to rely on section 10(12) of the Trade Marks Act (prior user rights).  That leaves open section 10(6) of the Act (prior well known mark).  But the question would be whether ENRICO COVERI would be for shoes what McDONALD's was for hamburgers?  The crucial date here would be the filing date of Barel's class 25 registration (in 2007). In the McDonalds's case the court used the criterion of the mark being well known amongst people interested in the goods.  This was, practically, customers and potential franchisees.  The latter could be substituted in the current context with retailers of shoes.  So, was ENRICO COVERI well known amongst customers or retailers of shoes in 2007?  However, Barel may seemingly rely on section 14(2) of the Trade Marks Act, which reads as follows: 

“In the case of a trade mark which is sought to be removed from the register on the ground that it offends against the provisions of paragraph (6)…of section 10, the court or the registrar, as the case may be, may, in the case of honest concurrent use or of other special circumstances which make it proper to do so, refuse to remove the trade mark from the register.”

 

The question to be answered though is whether his use complies with the requirements for honest concurrent use?  In terms of the relevant factors set out in the Pirie case, stated to be applicable to our law by Webster and Page South African Law of Trade Marks par 6.17, one problematic aspect might be whether the choice of the trade mark was honestly made?  From the evidence it seems plausible that the trade mark was selected by Barel because it was an existing mark.

Should Barel's defence be upheld, it could then launch infringement proceedings against PT.  On the other hand, if EC could succeed in expunging Barel's mark, it could in theory rely on section 35(3) of the Trade Marks Act (well known marks) to stop Barel's use.  Again, the important question would be whether EC can meet the burden of proof?  Was the mark well known on the date of Barel's first use?

If EC is content to have Barel on the register of trade marks, it could of course elect to apply for registration of its mark on the basis of honest concurrent use relying on its claimed use over several years.

The position in terms of passing off is complicated.  It would seem that neither party can succeed against the other because both have used the mark for relatively long periods of time.  PT claims use since 2009, Barel claims use since 2005.  There is thus at least 16 years of concurrent use.  But is it honest?  The English writer Wadlow The law of passing off (6ed) 9-131 states for instance:

“The term ‘honest concurrent use’ derived from successive Trade Marks Acts is inappropriate in passing-off.  If there has been concurrent user in fact, then it cannot be conclusive whether or not it was honest. The distinctiveness of marks is frequently destroyed by conduct which would have been actionable, even fraudulent, had the claimant acted in time. A fortiori, a concurrent right to use the mark, or more properly an immunity, can be obtained by use which was less than honest in its inception.”  

It is sometimes said that a particular outcome might be law but it is not justice.  The next step in this matter could make it hard to distinguish between the two.

Author: Wim Alberts

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SOUTH AFRICA: Dead Serious Branding - Passing off resurrects

SOUTH AFRICA: Dead Serious Branding - Passing off resurrects

By Afro-Corne   Friday, June 27, 2025   No comments:

Like a bad obituary headline, this case had all the trappings of drama - forged signatures (or were they?), misrepresented policies, and a family funeral parlour with a reputation as long as its 1938 lineage. It’s also a cautionary tale of what happens when undertakers take insurance partnerships too personally and forget to read the fine print… of their own making.

Background: The Family Name That Wouldn’t Die 

Van Willing Funerals CC, a long-standing funeral business rooted in the Eastern Cape, woke up one morning in 2023 to discover their name had been emblazoned across insurance policies sold by Transafrica (aka Vision Direct 155 (Pty) Ltd), a licensed financial services provider.

Junior Van Willing, fresh at the helm since 2020, was outraged. He claimed Transafrica forged his signature, hijacked the goodwill of the funeral parlour, and was trying to impersonate his family’s legacy in the afterlife insurance game, like a policy salesman gate-crashing a wake.

But, spoiler alert, the High Court wasn’t buying it.

Enter the Agreement from Beyond the Affidavit

It turns out that the drama had a prequel: in 2022, Junior entered into an agreement with Transafrica (on behalf of Brijuwen CC - also his, because one CC just isn’t enough). This deal saw Brijuwen and a team of Junior-nominated salespeople become Transafrica’s official representatives, selling funeral policies under the name Van Willing Funerals. They even got trained in the Van Willing offices. Commission? Paid. Branding? Agreed. Signature? Digitally added (albeit poorly).

It was, in short, a co-branded insurance scheme with mutual benefit… until it wasn’t.

The Claim: Passing Off, Plain and Simple (Or Not So Much)

Van Willing’s claim was textbook passing off. The court, mercifully, didn’t need to exhume Roman-Dutch principles, it stuck to familiar jurisprudence, including Capital Estate, Caterham, and the like where the applicant must prove:

1. A protectable reputation,

2. A misrepresentation likely to deceive, and

3. A likelihood of damage.

On paper, Van Willing had the goods. The family name had been active in the funeral trade for nearly a century. Junior brought along testimonials, press clippings (some blurry, some illegible), and a 1993 Evening Post article calling his dad the owner of one of the “largest funeral firms” in the area.

But it all unravelled when the court found… he’d agreed to everything.

Misrepresentation? Not Quite, Says the Judge

The policies bore the Van Willing name, yes. But they were covered in disclosures:

- Underwritten by Centriq Life Insurance,

- Administered by Transafrica,

- Packaged by representatives trained and approved by Junior himself.

The name-dropping? Agreed upon in writing. The commission? Paid as promised. Even the contested signature? A mistake, sure - but not a forgery. Just a computer-generated “Junior Van Willing” footer where Transafrica’s should’ve been. Amateurish? Yes. Malicious? No.

The kicker? Transafrica stopped using the Van Willing name the moment they were asked to. No policies sold since the termination notice.

On Harm: Where's the Body?

Junior hadn’t shown any reputational harm or likelihood of harm. No unhappy clients. No substandard services. And in fact, policies sold under the Van Willing name probably brought in more funerals, and maybe even more foot traffic (pun intended). 

Disparagement? Nil. Confusion? Possible, but unlikely given the full disclosures. Damage? Missing. The Court dismissed the application, with ordinary costs.

Afro-IP Takeaways: When Your Good Name Isn’t Enough

• If you invite someone to use your brand, don’t play dead when they actually do.

• Partnerships require clarity and clarity doesn’t come from unsigned affidavits, absent policyholder testimonials or pixelated press clippings.

• If you are authorised, you cannot infringe or pass off. It’s the proverbial nail in the coffin.

Brought to you by Afro Corne

Afro Leo says:

In contrast to the facts, this is no shoddy judgment (in fact a very good one) but take a look at the paras on “harm” [33-37] where disparagement and dilution of advertising goodwill are discussed [37] in the context of passing off. This is unusual. Disparagement and dilution are typically pleaded as forms of unlawful competition. Furthermore, the concept of “a common field of activity” or “area overlap” attracts unnecessary scrutiny – it’s all about a “likelihood of confusion” in passing off, which can take the form of a perception of endorsement or other business link. Harm is then inferred.

Links

Case Link: Van Willing Funerals CC v Vision Direct 155 (Pty) Ltd t/a Transafrica [2025] ZAECQBHC 21

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BOTSWANA: Registered trade marks are a defence to passing off

BOTSWANA: Registered trade marks are a defence to passing off

By Afro Leo   Wednesday, June 18, 2025   No comments:

On 27 March 2025 Judge Busang sitting in the High Court of Botswana at Lobatse handed down a judgment dismissing Specsaver Botswana’s claim for an interdict and other relief including punitive costs against Strategic Ideal Holdings (Pty) Limited (Spec-Savers South Africa’s licensee), based on passing off.

The case is notable, from a legal standpoint, because:

a) it is only the second reported passing off judgment in Botswana;

b) it affirms the value of a registered trade mark in Botswana, being a positive right i.e. a right to ownership and use of the trade mark, and not simply a negative right to stop others from using; and

c) it shows that litigants in a passing off case must meet the evidentiary thresholds for establishing reputation and the misrepresentation.

Specsavers Botswana had alleged the adoption of their mark SPECSAVERS in 1999 and use of the mark thereafter. Spec-Savers South Africa had registered their trade mark from 2001 and begun using it, through their licensee, in 2014. Specsavers Botswana claimed that they had established a reputation symbolised by the mark such that the use by Spec-Savers South Africa licensee of SPEC SAVERS was likely to cause deception or confusion.

Spec-Saver’s South Africa defended the application by challenging the evidence filed in support of the passing off claim and by arguing that they were entitled to use their registered trade mark SPEC SAVERS because the rights conferred on them by their trade mark registration, were positive.

Section 74 and 81 of Botswana’s Industrial Property Act No.8 of 2010 (the Act) states that:

"74. (1) The exclusive right to a mark under this Act shall be acquired by Registration in accordance with the provision under this Part.

81. (1) Registration of a mark shall confer on the registered owner, the right-

(a) to exclusive ownership of that mark;

(b) to prohibit third parties from using the mark; and

(c) to institute court proceedings against any person infringing his or her rights.”

The court referred to case law out of Botswana, Namibia and South Africa on the delict of passing off finding that Specsavers Botswana had failed to provide sufficient evidence of reputation and misrepresentation, and that there was no detailed explanation of how the Respondent's conduct caused confusion. Further, that Spec-Saver’s South Africa’s trade mark was lawfully registered, providing them with a positive right to use and own the trade mark. The case was therefore dismissed with costs, including costs of counsel, and is a notable win for Spec-Savers South Africa.

Specsavers (Pty) Limited has appealed the decision.

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Sport, brands, success and South Africa

Sport, brands, success and South Africa

By Afro Leo   Tuesday, June 17, 2025   No comments:

Fifteen years ago, to the month, South Africa hosted the FIFA World Cup Football tournament which also sparked a great deal of commentary on this blog on a number of intellectual property issues. Branding, sponsorships, counterfeiting, changes to legislation and the "World Cup effect" created by its spotlight on South Africa (and Africa generally) all became talking points, a much-needed boost for our economies and exposure for IP issues. 

Indeed, on a personal level, within hours of this blog post - The [arrest? of the] Beautiful [at the] Game, I became immersed in negotiations between FIFA, Bavaria and the girls who were arrested for alleged ambush marketing. The circumstances of that incident are such that it is still widely noted as a seminal moment not only of that World Cup, where it stole headlines for a week, but also for discussion on what best practice is for ambush marketing concerns, the brilliance of marketers and also how to deal with ambush marketing effectively... or not. For me it meant missing a few games of football but gaining insights unlikely to be repeated in my lifetime.  

Another topic that came to the fore was the use of national flags and state emblems and the legitimacy of it all. This post "Flagitis" became rather popular even though its conclusions were inconclusive and revealed the confusion surrounding permissions for use of national flags for promoting business. Fast forward on that topic and suddenly, in 2025, we have seen a number of notices in the national gazette permitting the use of the flag by a variety of different organisations in South Africa. People have obviously found the Minister to talk to and are bugging him regularly!

The examples are illustrated in the pic and were requested by organisations as diverse as the South African Revenue Service (the tax guys), Big 5 Cookware (as it says on the tin), Olive or Twist (campaign creators) and SA Greetings (gifts and accessories). A typical notice will read: 

National pride was again on display this weekend with South Africa cricketers winning, against most betting odds, the ICC World Test Championship. This is against a backdrop of South Africa becoming Rugby World Cup winners in 2024 in remarkably close and challenging circumstances, and recent global wins for athletics, surfing and UFC. It's no surprise therefore that local marketers wish to latch onto national emblems in the interest of their organisation's success and the South African public obviously oblige. 

It's not all roses (or rather, proteas) though; South Africa football jerseys are the slowest off the shelves based on their lacklustre performances and brand South Africa got somewhat "trumpled" in the White House recently. Tellingly, in RSA's arsenal on that occasion in May was none other than two RSA golfing stars and a 14kg book, not on development economics, but on, you guessed it, South African golf courses. Yes, golf is a possible way to Trump's heart but it's really a reflection of a national brand that is steeped so much in sport. Not just sport mind you, but success in sport. 

Darren Olivier

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BOMB SQUAD BEER? - PLUCKING A TRADE MARK OUT OF THIN AIR

BOMB SQUAD BEER? - PLUCKING A TRADE MARK OUT OF THIN AIR

By Afro Leo   Tuesday, June 17, 2025   No comments:

"Bomb squad" is a term well-known to supporters of the Springboks, the South African national rugby team, as referring to the reserves that come on after halftime.  They are seen as an intimidating factor, having a significant impact as fresh players.  On account of this the term has become part of the national psyche and sport folklore.  It bears mentioning that the term has even now found its way into the political realm.

Malcolm Marx, a hooker, and prop Steven Kitshoff, now retired, are prominent players associated with the bomb squad.  These players have, however, taken their association with the term bomb squad a step further by, in fact, becoming entrepreneurs and establishing a business based on the use of the term as a trade mark.  The term is being used in relation to, amongst others, beer, and clothing.  Trade mark applications for BOMB SQUAD – in a logo format - have also been filed.   The applicant for the mark is listed as Marxhoff (Pty) Ltd, a name no doubt derived from the two players' surnames.

The originator of the concept of a bomb squad - fresh players, predominantly forwards - is the coach of the Springboks, Rassie Erasmus, who is in the employ of the South African Rugby Union (SARU).  However, it is not known who first used the term in relation to a reserve squad of players.  Be that as it may, should the SARU nevertheless be the "owner" of the mark?

In the Bafana Bafana case (SAFA v Woodrush) judge Harms commenced his judgment by stating (paragraph 1) that:

"The national soccer team had the nickname Bafana Bafana thrust upon it during 1992, first by the press and thereafter by the public.  The appellant, the South African Football Association (‘SAFA’), manages, administers, controls and selects the team. After some years of hesitation and reluctance, SAFA adopted the name as a commercially valuable appellation for the team. Believing now that it is the ‘true proprietor and the holder of all the trade mark and other intellectual property rights in and to’ the name, it claims to have committed itself to the exploitation of its rights by means of an extensive licensing and merchandising programme. For instance, it embarked on an ambitious campaign of registering as a trade mark the name Bafana Bafana by itself and also in association with different logos on virtually all goods and services and in practically all classes under the Trade Marks Act 194 of 1993…”

 

From the evidence it appeared (paragraph 7) that:

“The origin of the name Bafana Bafana formed the subject of a linguistic or perhaps semiotic debate, as if the average consumer or soccer fan could care. One thing though is clear and that is that three journalists at the Sowetan newspaper were the first to use the appellation in connection with the national team during July 1992. The nickname caught on, somewhat to the annoyance of SAFA, because some cultures regard it as derogatory to refer to a team of (sometimes married) men as ‘boys’. Exactly when SAFA realised the value of the name is unclear.”

The SAFA did delay enough though to allow a third party to apply for registration in relation to clothing.  In the matter, an expungement application brought by the SAFA against a registration for BAFANA BAFANA in class 25 held by Woodrush,  the SAFA relied primarily on its intention to conduct an extensive merchandising program.  This ground was rejected though (paragraph 20) because an intention to use does not create a preference to registration.  However, even though the third party was successful, today, following no doubt some financial consideration being paid, the mark BAFANA BAFANA is indeed registered in the name of the SAFA.

Returning then to the BOMB SQUAD mark, it appears that Mr. Marx and Mr. Kitshoff do not have any special claim to the mark merely because they were indeed members of the bomb squad.  In this regard it was said by Harms JA in the Bafana Bafana judgment (paragraph 14) that the proprietor of a trade mark need not be its originator.   He referred to the ruling of Nicholas AJA in the Victoria’s Secret matter:

“In terms of s 20(1) [of the old Act] one can claim to be the proprietor of a trade mark if one has appropriated a mark for use in relation to goods or services for the purpose stated [in the definition of a trade mark], and so used it. (I use the verb appropriate in its meaning of “to take for one’s own”. It is a compendious expression which comprehends the words favoured by Mr Trollip in the Moorgate judgment, namely originate, acquire and adopt.)”

The players mentioned were thus not the originators of the bomb squad term, but they were first to appropriate it through the filing of a trade mark application as far back as May 2023 (the exact date of first use is not known).  In the Bafana Bafana decision it was stated (paragraph 9), with reference to earlier case law, that there is no exclusive right to a name.  However, there is no reason why an entrepreneur should not take the benefit of such advantage as he may be able to gain in the marketing of his goods and services by associating them with names that have become famous.  Two examples from the music world can illustrate this principle further.  UB40, the name of the famous band, is actually derived from the British Government’s unemployment benefit form 40.  Likewise, the band LED ZEPPELIN took their name from the famous Zeppelin air ships, one of which was involved in the disastrous Hindenburg accident.  A South African example could be where the infamous tax form IRP5 is adopted as the name for a music group.

In conclusion, it seems that the mechanism involved in cases such as that of the BOMB SQUAD trade mark, is that a word or expression “floating about” is claimed as a specific person’s trade mark - this expression then can be registered validly.  Until then, it is basically res publica.  In the sports world, the mere fact that a body is charged with regulatory authority over a particular sport, would not automatically give it preference to registration.  A caveat should be noted though, being that the existence of an association of a term with a sporting body or a person is always a factual question.  Thus, if the SARU, for instance, conducted a merchandising program using BOMB SQUAD in a trade mark sense, it could provide the Union with passing off rights in the fields concerned, or, in a registration context, with common law rights that could see it triumph.  So it is not necessarily a free for all situation.  

Wim Alberts

University of Johannesburg

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