Proac­tive stance needed to pro­tect IP rights

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

used by com­pa­nies with­out con­sent.

In ad­di­tion, the Ad­ver­tis­ing Stan­dards Au­thor­ity of SA’s (ASA’s) code of prac­tice pro­vides that a com­pany can­not por­tray a liv­ing celebrity with­out con­sent, ex­cept in cases where the por­trayal doesn’t in­ter­fere with the celebrity’s right to pri­vacy and doesn’t amount to un­jus­ti­fied com­mer­cial ex­ploita­tion.

In a fa­mous case, the ASA ruled that an ad­vert by fast-food chain Nando’s, which re­ferred to a for­mer CEO of South African Air­ways who was, at the time, re­ceiv­ing wide news cov­er­age, did not con­tra­vene the code be­cause it was not ex­ploita­tive. Rather, it was a witty com­men­tary on a pub­lic fig­ure and a top­i­cal is­sue.

How­ever, none of these op­tions is guar­an­teed to suc­ceed, and celebri­ties should se­ri­ously con­sider get­ting trade­mark regis­tra­tions for their names, pho­tos, like­nesses, sig­na­tures and pos­si­bly even the ges­tures with which they are as­so­ci­ated. Trade­marks are reg­is­tered for par­tic­u­lar goods and ser­vices, so it is im­por­tant to choose the right prod­ucts — ob­vi­ous can­di­dates would be cloth­ing, cos­met­ics, jew­ellery and the like.

To validly reg­is­ter a trade­mark, the celebrity must have an in­ten­tion to use it on those goods and ser­vices. This in­ten­tion can take the form of an in­ten­tion to li­cense third par­ties.

As their main­stay is their im­age, celebri­ties would be ad­vised to take ad­van­tage of the nu­mer­ous op­tions avail­able to pro­tect their IP rights.

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