Thursday, 16 October 2008

What happens to an abandoned bok?

There is currently a heated debate going on in South Africa about the abandonment of the Springbok, South Africa's traditional rugby emblem. For the uninitiated the Springbok is to South African rugby what the Lion is to the British Isles, the Bull to the Chicago Bulls and the Vulture is to the Flamengo Football Club. However, the Springbok is also seen by many as a symbol of the old South Africa and its continued existence, an impediment to full transformation to a non-racial society. This post is not about that debate but, ponders the following:

What would happen to the Springbok if it was summarily kicked out the game park? What would happen to the intellectual property attached to the bok and is there a prospect that someone could exploit it?

Leaving aside what might happen to Afro-Leo (who has been hunting springbok for years and may now need the services of a nutritionist) there are undoubtedly registered trade marks throughout the world, valuable goodwill attached to the name and bok symbol and copyright in the symbol too. Does a public abandonment of the emblem leaves those trade marks vulnerable to cancellation eg for lack of intention to use? In some jurisdictions that may be the case. However, does this mean that someone like Mike Ashley, disillusioned by his brief foray into the Premier League, could start a rugby side called the SPRINGBOKS and exploit the emblem for commercial gain? We have seen that protectable goodwill can endure for many years but goodwill is not protected in all jurisdictions in the same way and perhaps more importantly, who would foot the bill to enforce the rights - surely not body that has abandoned it, especially in such circumstances? Copyright in the bok symbol would remain an actionable right too in most jurisdictions but then again would it be enforced? Would the risky prospect of damages be a sufficient incentive? Unlikely one would think.

It seems that the abandonment of the symbol and name does create an opportunity for someone who thinks they could gain an advantage out of it. It not as easy as it may sound - the symbol would have been endorsed as a throw-away asset for a reason and that reason would taint its potential commercial value, among other things. That said, if the debate is heated enough we could find ourselves with a rebel SPRINGBOK sponsored by some body who feels that they could exploit it or with enough money not to bother.

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