Monday, 23 August 2010

Cell C - the power is not in your C

There has been much controversy over Cell C's (South Africa's third largest mobile operator) brand tinkering in South Africa. First was the contrived You Tube clip (controversy explained by Marklives here) and the second is the refusal of its re-worked logo by CIPRO.

Whilst public opinion is divided on the new ad campaign (I fall into the "well done! sector"), Cell C will not be able to escape the provisional refusal to register its new logo. CIPRO, on the other hand, are spot on and with refreshing efficiency too.

The devilish detail is contained in the Trade Mark Regulations:

10. Unregistrable marks

(1) Subject to the provisions of any other law, the Registrar may refuse to accept any application upon which any of the following appear:
(a) The words 'patent', 'patented', 'by letters patent', 'registered', 'registered trade mark', 'registered design', 'copyright', 'certified', 'guaranteed' or words to like effect; and
(b) the letters '®', ' ©' or similar combinations which may be construed to import a reference to registration.

Cell C filed 70 applications - the first batch on 1 December last year and the second on 12 July 2010. All of the applications include the potentially fatal copyright symbol. The first batch of 43 have been provisionally refused meaning that CIPRO almost certainly raised an objection under Regulation 10 (in double quick time too - it must be said).

There is a way around the objection and perhaps a smart trade mark attorney will make the suggestion below? However, it is difficult to avoid the acknowledgement that Cell C's new trade mark is legally weak. Please let me know a judge that will allow anyone exclusivity to the copyright symbol or to the word "cell" for that matter for telecoms. The irony too is that logos are often protected by copyright but not so in this case.

So Cell C spend millions building a brand in a market which is dominated by two main players, where margins are low and the need to differentiate is crucial. Yet the marketing department hampers its own efforts by choosing a trade mark that will be costly and, at best, unpredictable to protect. On the positive side, I am delighted they did not choose the colour orange - which is about as muddy as its namesake river in the telecoms space (as explained by the link).


Anonymous said...

I can see MTN poking fun at them eg MTN logo (c) Cell Co.

Jeremy Speres said...

Isn't there scope for Cell C to argue that if the mark is viewed as a whole, as the public would view it, any perceived reference to registration is unlikely? The very fact that the Registrar is given a discretion here indicates that he/she should consider factors other than the (c) alone. Factors militating against a reference to registration could include:

- the fact that the (c) is not in superscript, as a copyright symbol would be;

- the use of CELL along with the (c);

- the extensive reputation Cell C has in the words CELL C, which means the public may well be more inclined to perceive the (c) as part of Cell C's badge of origin than as a reference to registration.

Interesting issue this...

Darren said...

Jeremy, I like these arguments. I guess offering an admission may also help: "Applicant admits that the registration of this Trade Mark shall not debar other persons from the bona fide use in the ordinary course of trade of the copyright symbol (c) in its ordinary signification and apart from the mark"

Njuguna said...

Darren, i do agree with you the trade mark is weak, but if the company is bent on registering it wouldn't a disclaimer of the “offending” symbol do?