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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Safaricom's thin line

Safaricom's thin line

By AfroTwiga   Tuesday, October 08, 2013   No comments:

Just the other day, this Leo caught himself telling a colleague, "Let me MPesa you the money". Immediately, a blog post was born.

Holding the line between popular and generic
(The Thin Red Line 1854 Richard Simkin)

Trademarks, unlike copyrights and patents, are granted primarily as a means for consumer protection. Valid and enforceable trademarks allow consumers to be more confident in the source of that product. If a trademark fails to identify the source, then it fails its primary function, and should not continue to receive trademark status.

This is the rationale for the revocation of trademarks that become "generic". A good example is the previously trademarked term "thermos". A thermos was once a product of a single company, but the term became generic as people referred to all similar goods (regardless of manufacturer) as thermoses. Once generic, the term no longer qualified for trademark protection.

A common way for trademarks to become generic is when they are commonly used as verbs. Xerox (the company) fought hard to stop people from using "xerox" as a verb (e.g., "I'm going to xerox this document"). When used as a verb, it's easy to see that a trademark can be used generically. One can imagine "xeroxing" a document on a Ricoh photocopier, for example. This situation is deadly to a trademark.

In the case of MPesa, it is extremely (and should be worryingly, at least to Safaricom) common for people to use "MPesa" as a verb, as exemplified above. This Leo has even heard people say they will MPesa some money over Airtel, a competitor service. Such use of the trademark is improper and diminishes the ability of the trademark to indicate a product source.

The proper use of a trademark is as an adjective - e.g., "I'm going to send you money using the MPesa mobile money system." Quite a mouthful, but it clearly indicates the source of the product.

Brands that pioneer a product/service such as MPesa must always walk the thin line between being popular and becoming generic. 

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Weekend Cuttings

Weekend Cuttings

By Darren Olivier   Sunday, July 10, 2011   No comments:

Kenya step up efforts to fight counterfeiting - the Kenya Pharmacy and Poisons Board and their Anti-Counterfeit Agency collaborate according a recent regional conference report but the situation in East Africa still seems desperate.

Insead's Global Innovation Index results: among Sub-Saharan African economies, Mauritius (53rd) achieves the top regional spot while South Africa (59th) is the runner-up. Ghana comes next at position 70, and is ranked first among economies classified as low-income throughout all regions. The top 10 economies in the Innovation Efficiency Index (examines how economies leverage their enabling environments to stimulate innovation results) are Côte d’Ivoire, Nigeria, China, Pakistan, Moldova, Sweden, Brazil, Argentina, India, and Bangladesh. Afro Leo suspects that Mauritius's top performance has more to do with its favourable tax laws than it being a beacon of African innovation. Comments welcome.

RSA's newly formed CIPC Companies and Intellectual Property Commission is addressing its problems according to this article in ITWeb. The South African Institute of Chartered Accountants gets some credit but the South African Institute of Intellectual Property Law, nought.

The colourful characters, brands and events that helped shape South Africa are the heroes of a new book from Affinity Publishing - From Groot Constantia to Google: 1685 - 2010 - due to hit the shelves at the end of July. Afro Leo had been combing his mane in anticipation of a snap inclusion, alas.

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How Not to Create a New Name: Lessons from NiGaz

How Not to Create a New Name: Lessons from NiGaz

By Afro Ng'ombe   Wednesday, July 01, 2009   1 comment:

On a continent where individual countries have more languages than Europe, concerns about translation and wording are not new, especially for brand owners. But a recent announcement in Nigeria offers a not so subtle reminder to check, and double check, the possible meanings of your new brands.

The UK Guardian reports on the new joint oil and gas venture between Nigeria National Petroleum and the Russian company Gazprom. As is common in joint ventures, the companies took parts of each of their names and combined them. Unfortunately for the new company, they took the first part of each name and created Nigaz*.

For those who have spent any time in a country with lingering racial tensions, or who are familiar with the American hip hop music that has infiltrated most of the continent, the less than positive connotations with the company’s new name do not need to be explained. Reuters Africa reports that the new name has sparked a number of racism debates as well as plenty of caustic jokes and some opposition from Nigerians.

Afro-Leo wonders if those opposed to the name would find it less offensive were it not seen as coming from the Russian company. Thinking of a South African commercial seen in a Lusaka movie theater a few years back: a group of friends were sitting on some steps greeting each other with words similar to the new company’s name. Everyone was laughing and talking, just hanging out. Then, the only white guy in the group used the word to greet a friend, and everything went quiet. The other friends all stared at the white guy and words on the screen said something to the effect of ‘if you get it, that’s the point.’

The meaning of words can depend as much on who the speaker is as who the listener is. When considering new brand names and trademarks, it’s important to think of who the message is going to and who it is perceived as coming from.

*If actually pronounced like the first part of each word, the new name has a hard i sound, like nye.

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INTA Africa Update

INTA Africa Update

By Afro Ng'ombe   Friday, May 22, 2009   No comments:

Afro-Leo had a special treat yesterday at INTA, a whole session just for him!  The Regional Update: Africa session brought together four very knowledgeable and well spoken African attorneys.  Completing quite the feat, the panel managed to give a decent overview of most of the continent in just over an hour.

The panel gave us a very optimistic view of the future, including improvements in new trademark legislation, steps to implement recent legislative changes and increased enforcement of trademark laws.

Legislative Developments

A number of countries are in the process of changing, or have recently updated, their trademark legislation.  South Africa, Namibia, Djibouti and Rwanda all have new Trademark Acts in the works.  And it looks like Zambia may soon begin working on a new act as a working group has recently formed to begin tackling this task. 

Zimbabwe, Ethiopia, the Gambia, Uganda and Tanzania have recent Acts or amendments to old acts, which those countries are working to implement.  Ethiopia and the Gambia are moving along well in their implementation.  Zimbabwe has more pressing issues at the moment.  Kenya is also working to implement its existing modern legislation.

Special notice was given to Mozambique, perhaps the brightest shining star in African Trademark legislation.  Mozambique is celebrating the 10th anniversary of its Trademark Act.  The act is working well in practice, there are provisions for compliance with the Madrid Protocol and the trademark office has a good staff with a very capable registrar.

EAC

William I. Maema discussed the trademark implications of the forming East African Community.  Kenya, Uganda, Tanzania, Burundi and Rwanda hope to have the EAC common market in place by next year.  This common market will mean harmonization of trademark laws and coordination of enforcement activities.  The EAC countries also plan to introduce specialized anti-counterfeiting police units and training for the area’s customs units.  There is also the potential to introduce mandatory sentencing for counterfeiting crimes.  (Currently, most of the area’s countries have maximum sentences, but no minimums.))

Tanzania’s Two Systems

August Mreme gave specific information regarding Tanzania’s two separate trademark systems.  The existence of two different systems within one country can sometimes take foreigners attempting to do business in Tanzania by surprise.  There are historical reasons for the existence of two systems, relating to the way in which the government was set up when Tanganyika and Zanzibar joined together.

Both systems include recently amended trademark laws.  Tanganyika amended its Merchandise Act in 2008 and Zanzibar introduced its Industrial Property Act the same year.  Tanganyika's Merchandise Act introduced zonal offices around the territory, defined “counterfeit goods,” created a specialized task force comprised of officials from a variety of government agencies, and strengthened enforcement with anton pilar orders, mareva injunctions and new punishments.  Zanzibar’s Industrial Property Act extended protection to non-traditional types of marks such as sound, color and smell.  Service marks and well-known marks are also now protected.  Enforcement measures were increased here as well, with new boarder measures, remedies and injunction possibilities.

Improvements Needed

While optimism is high, there is still much work needed.  In general, many countries have decent legislation but Acts do not have implementing regulations and laws do not have proper enforcements on the ground.  A few countries, most notably Eritrea, Libya and Somalia, are in desperate need of trademark reform.  Unfortunately, countries needing high levels of reform often have much more pressing issues with which to deal more immediately.

Madrid also remains a big sticking point in Africa.  Several brand owners at INTA mentioned that the lack of Madrid compliance in Africa is one of the main reasons they do not attempt to regiser their trademarks there.  The number of countries acceding to Madrid is increasing, but the countries do not always have the matching legislation.

Going Forward

African countries are moving in the right direction.  Many issues still exist, but countries are addressing the issues as able.  OAPI remains a strong player in these improvements.  (Simon Brown described OAPI as an “African beacon – how a regional system should work.”)  But the countries cannot do everything alone.  Brand owners demand enforcement and protection of their marks, yet are reluctant to register their trademarks.  The countries are putting the necessary legislation in place, but the legislation cannot offer protection without the brand owners doing their parts.  As August Mreme explained, if brand owners do not register their marks to protect their brands, counterfeits from the Middle East will destroy their brand image in Africa.

[For those wishing to know more about the panel, the speakers were: Simon Brown of Adams & Adams in South Africa, William I. Maema of Iseme, Kamau & Maema Advocates of Kenya, and August N. Mreme of Mkono & Company Advocates of Tanzania.  The panel was moderated by Gerard du Plessis from Adams & Adams of South Africa.]

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Anti-Counterfeits conference held in Kampala

Anti-Counterfeits conference held in Kampala

By Asiimwe Paul   Friday, February 20, 2009   No comments:

Africa Matters, a consultancy firm headed by Baroness Lynda Chalker recently organized an Anti- Counterfeits conference in Kampala, Uganda.

The workshop departs from previous Intellectual property related workshops in its direct focus on what is increasingly becoming a menace to legitimate business, health and safety. This is in part because of the increasing concerns about the dangers of counterfeits as pointed out by the Presidential Investors Round Table(PIRT) in Uganda inn 2007 and 2008.

President Yoweri Museveni opened the conference by warning of the dire impact of counterfeits on the economy. According to the Monitor report, "Mr Museveni said he would be comfortable employing the harsh communist Chinese strategy of hanging culprits who profiteer from counterfeit goods, to deter individuals from indulging in illicit trade". As if to emphasize how challenging the situation is, Ms. Chalker asserted that "more than half the anti-malaria medicines in Africa are counterfeit".

One of the positive remarks made was a statement by the Minister of Trade, Tourism & Industry who stated that the Anti-Counterfeits Bill, 2009 will be presented to cabinet soon. Under the proposed law, anyone found in possession of counterfeit goods will be liable to a 5 year jail sentence.

On the other hand, "individuals who manufacture, produce or make the counterfeit goods, will be liable to paying a fine 10 times the value of the genuine goods, an order of permanent closure of business premises and a jail sentence". These provisions go over and above the existing provisions. However, the potential good of this legislation will depend on the willingness of Judicial officers to implement the stiff penalties under the law.

Overall, these are positive noises for brand owners.

The downside is that at the same conference, it was reported that Sara Lee, manufacturers of the famous Kiwi shoe Polish will be ceasing manufacturing in Kenya and a few other African countries due to incessant counterfeiting. In a way, this sad story underscores the fact that trademark registration alone is insufficient to protect certain popular consumer brands. Governments such as the Ugandan government need to assist trademark owners by strengthening customs measures, quickening judicial interventions and training law enforcement officers.

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