Thursday, 23 October 2008

What happens to an abandoned bok...part 2

Further to an Afro-IP post last week, journalists Aziz Hartley and Ashfak Mohamed have done some investigative work in connection with a claim by Sports Minister Makhenkesi Stofile that the department of sport and recreation owns the Springbok emblem. They report that searches of the trade mark register by Owen Dean's firm Spoor & Fisher and Trade Mark Attorney Dan Badenhorst confirm that SARU (South African Rugby Union) is the proprietor of the trade marks. Apparently, on Tuesday, Stofile told parliament's sports portfolio committee that many South Africans, including the rugby union, did not know who owned the trademark.

Determining ownership of a trade mark is not as easy as it may appear. The trade mark register serves as first glance proof of a valid right to a trade mark. However, a trade mark serves as a badge of origin and a guarantee of source and if it should fail to continue in that function it runs the risk being cancelled. If Stofile is correct that many South Africans did not know who owns the trade mark then that is a sign that the trade mark may not be indicating origin. If upon further investigation (eg by interviewing the relevant public) it appears that they are confused as to who owns the trade mark by suggesting that several different bodies, organisations or firms do, or that nobody does or as as national symbol that the public does (another debate altogether) then that trade mark may well be vulnerable to a cancellation claim. The investigationso may also indicate that the goodwill associated with the trade mark is in fact owned by a different "person" than the legal proprietor of the trade mark which means that the rights conflict with one another and ultimately could also lead to a loss of rights in the registered trade mark.

I had a number of comments on my earlier post and look forward to further comments on this one. It would be great if those comments would be made live on this site as this is a discussion that appears to have have no clear answer.

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