Horn claims are ‘hot air’

2010-01-23 00:00

THE recent dispute over the legal rights to the vuvuzela — which involves, among others, a well-known church group, an eccentric soccer fan and a product manufacturer — is a load of “hot air”.

This is according to Likonelo Magagula, an intellectual property attorney at Deneys Reitz Inc.,who told Weekend Witness that the word “vuvuzela” or the vuvuzela shape cannot function as a trademark — which is essentially a brand name.

“The vuvuzela is the common name used for the metre-long horn blown at soccer matches by fans. Vuvuzelas are produced by several different companies, but they all have one thing in common, they have the same shape and they all go by the generic name ‘vuvuzela’.

“This means that the word ‘vuvuzela’, or the vuvuzela shape for that matter, cannot function as a trademark, as both the word and the shape thereof lack the capacity to differentiate between vuvuzelas emanating from different undertakings,” Magagula said.

Although a South African company is apparently the holder of the trademark for the vuvuzela, the Nazareth Baptist Church as well as a prominent Kaizer Chiefs fan have both disputed this.

A faction within the church has reportedly argued that it has been using the vuvuzela for about a century for praise and worship purposes. And Kaizer Chiefs fan Saddam Maake claims to have invented it several decades ago.

To complicate matters further, it is understood that various manufacturers in SA and abroad are manufacturing the product.

Although people can also claim they have rights to the design of the vuvuzela or even copyright, Magagula said that such claims will not be successful.

“The claim for design rights would fall short, as a design has to be registered in terms of the Designs Act for rights, and a design also has to be new.

“It appears the vuvuzela has been around for a while and cannot satisfy the requirement of being new.

“As for copyright, such a claim will also in all probability not succeed, for want of originality,” Magagula added.

WHAT IS A TRADEMARK?

“A trademark is a sign used in trade to differentiate between the services or products of different undertakings,” explained Likonelo Magagula. “In simple terms, a trademark is a brand name. For example, in the beverages industry you have trademarks such as Coke and Pepsi. Brand names help consumers to differentiate between goods of the same kind that originate from different undertakings. A trademark can be a word, logo, a shape or even a colour.”

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