WHAT’S IN A NAME?

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW -

other pub­lic fo­rums.

This dis­pute raises two in­ter­est­ing ques­tions in the con­text of South African law and we will dis­cuss the first, with the sec­ond be­ing an­swered in next month’s edi­tion.

First, can you regis­ter a per­son’s name as a trade­mark? And, sec­ond, what if the Kylie dis­pute had to come be­fore the South African courts?

In con­sid­er­ing the first ques­tion, it is uni­ver­sally ac­cepted that the func­tion of a trade­mark is to dis­tin­guish the goods or ser­vices of one per­son from the same or sim­i­lar goods or ser­vices of­fered by an­other per­son. It nat­u­rally fol­lows then, that to qual­ify for reg­is­tra­tion, a trade­mark must be dis­tinc­tive in re­la­tion to the goods or ser­vices in ques­tion.

Sim­ply put, the trade­mark can­not con­sist purely of de­scrip­tive or com­mon terms or terms that are deemed

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