Shapes, positions and gestures of marks

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In today’s competitive and ever-changing technological environment, brands are becoming more and more innovative. We are seeing an increase in the number of trademark owners seeking to protect non-traditional trademarks. In this article, we discuss the registrability of shapes, positions and gestures of non-traditional marks in South Africa.

In essence, a trademark is a mark that serves to distinguish the goods or services of one trader from the goods and services of another trader. A “trademark” is defined in South African Trademark Law as “any sign capable of being represented graphically”. Traditional marks usually include words, logos and slogans, for example.

The South African Trademark Act contains specific provisions for the registration of non-traditional marks. These include three-dimensional marks, color marks, holograms, motion or multimedia marks, position marks, gesture marks, sound marks, olfactory (smell/odor) marks, taste marks and texture marks. These non-traditional marks have separate filing and examination procedures compared to their more traditional counterparts. However, non-traditional marks must still comply with general trademark requirements under the law.

The essential function of a trademark is to serve as a badge of origin, which guarantees the identity of the origin of the goods or services to the consumer. This sign of origin, in turn, allows the consumer to distinguish goods or services from different traders. This essential function is often easily performed compared to traditional brands. For example, if you see the word “APPLE” or the slogan Nike “JUST DO IT” on the goods, you immediately know the origin of these goods. When it comes to non-traditional brands, this essential function is usually more difficult to fulfill. Shapes, positions and gestures as non-traditional marks are generally not understood by consumers as indicators of the origin of a good or service.

Another challenge in obtaining non-traditional marks is that one cannot monopolize and/or prohibit the use of common shapes which are necessary to obtain a specific technical result or which are likely to limit the development of an industry. . Similarly, one cannot monopolize positions and gestures that can quickly become commonplace in any industry. A non-traditional mark cannot claim anything that is already in common use – it must be distinctive of the specific goods or services offered by a specific merchant.

Therefore, according to the wording of South African trademark law, if a shape, position or gesture is distinctive, it can be registered as a trademark. However, it is necessary to establish that the non-traditional mark is actually capable of distinguishing its product or service from those of others. As such, non-traditional marks can be difficult to register and enforce. For this reason, the advice of a trademark attorney will go a long way towards the success of registering a non-traditional trademark.

In addition, shape, position and gesture marks are not recognized in all countries of the world. For example, Angola only provides for the registration of traditional marks such as word marks, combination of words and logo marks and logo marks. Nigeria does not explicitly provide for the registration of shape, position or gesture marks, however, its law states that “any other distinctive mark may be registered as a mark”.

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