Copycat products imported into South Africa often replicate well-known brands. In such cases, an analysis must be undertaken to determine whether the owner of the legitimate well-known brand can sue based on various grounds. In this respect, although word marks are often seen as the most important because they are a brand's primary name, from an enforceability perspective, filing a part mark can help to avoid ambiguity.
The Liquor Products Act, which governs and regulates the labelling of wine products, includes specific regulations and a labelling guide which prescribe what can be incorporated on a wine label. Trademarks constitute the name of a product and are therefore subject to Section 12 of the act. As such, the name of the wine or the trademark must not be misleading. How this is applied and enforced in practice may be tricky, as many wines have interesting names.
The manufacturer of a new craft beer may use an interesting name and a creative logo, but does this mean that its brand is protected? If the manufacturer does not protect its brand, another party will likely try to obtain the IP rights – especially if the brand increases in popularity. A clash will undoubtedly result, which could be avoided by the manufacturer securing trademark protection for its product name and logo in good time.
An individual may file a trademark in his or her own name, as opposed to in the name of a company. In such cases, the asset should – as is the case with immovable or movable property – be specified in the individual's will and appropriately bequeathed to a nominated third party. This will ensure streamlined succession planning, particularly where the trademark is a core asset of the business and its affiliated brand value.