Monday 31 May 2010

Darren Olivier

Religious IP - latest RSA case

In the matter between George Mofokeng Mokabo and Presbyterian Church of Africa v Banile Bishop Nocanda and Presbyterian Church of Africa Ltd (Section 21 Company) the Eastern Cape High Court has made final an interdict/injunction against the Respondents from using the name "Presbyterian Church of Africa" based on passing off and awarded costs to the Applicants.

"...the name and epithets which have defined the separate identity of the church for a period of well over 100 years are under threat of being taken over by the respondents surreptitiously. The company and the first respondent have very unapologetically used the insignia of the church bearing its name and year 1898, the date on which the church was established, description and auspices of the church [which owns over R2 billion in assets]."

The cases touches on the difference between objecting to company names under the delict of passing off and the provisions of the Companies Act (which has distinct time limits). The case also discusses principles applied in instances when a party is accused of contempt of court.

As illustrated by this case, not-for-profit religious organisations own considerable goodwill in and to their names. There is a view that these types of organisations did not trade and therefore did not qualify for trade mark protection. Such a view, if it it still exists, must surely be outdated. Not outdated though will be the difficulty in protecting such names as trade marks because they so often contain descriptive words - nobody ought to get exclusivity to Presbyterianism, for instance. This interview with Holly Eddington of First Church of Christ, Scientist by Managing Intellectual Property's James Nurton is a useful insight into the trade mark issues affecting religious organisations.

Darren Olivier

Darren Olivier

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