More on the Springbok emblem

More on the Springbok emblem

By Darren Olivier   Friday, January 30, 2009   No comments:

The saga over ownership of the Springbok emblem continues. The latest report by SuperSport is that the Govt do not own the emblem, SARU does. For your reading click here.

One wonders if everyone is not missing the boat, certainly from a trade mark point of view - if the function of a trade mark is to indicate the origin of the services/goods in respect of which the trade mark (in this case the Springbok emblem) is used and there is so much debate about origin/ownership, then perhaps nobody owns it? Furthermore, does the emblem, as a traditional national symbol once used in respect of all sports, indicate origin at all ie is it a trade mark? And of course, does the owner of the copyright in the emblem co-incide with the alleged trade mark ownership if copyright still subsists in the emblem? Readers will be aware that a trade mark registration certificate is only first glance proof of valid title.

...another debate for the braai

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What happens to an abandoned bok...part 2

What happens to an abandoned bok...part 2

By Darren Olivier   Thursday, October 23, 2008   No comments:

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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What happens to an abandoned bok?

What happens to an abandoned bok?

By Darren Olivier   Thursday, October 16, 2008   No comments:

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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