On a daily basis, people of all age groups, mostly the youth, spend time during their day to look at and share generated images containing humorous catchphrases on social media. These images are popularly referred to as memes and while they are predominantly used for entertainment purposes, these images have potential advertising value due to their popularity. Before businesses start down a path to capitalise on this trend they should consider how the content of these images is protected under South African law.
Memes may consist of various aspects that may be used in advertising such as slogans and logos within an image. Badges of origin in business and advertising are regulated by intellectual property law, more specifically trademark law.
Section 2 of the Trade Mark Act defines a trademark as:
‘… a mark used or proposed to be used by a person in relation to goods or services for the purpose of distinguishing those goods or services from the same kind of goods or services connected in the course of trade with any other person’
As slogans and logos fall within this definition, they are protected by trademark law when they are used for the purpose of sale of goods and services. The benefits of registering a trademark are, firstly, the acquisition of the right to use the trademark in relation to the goods or services in respect of which the mark is registered. Secondly, it is a means to prevent others from registering that particular trademark or one that is confusingly similar in relation to the goods or services that the trademark protects. Thirdly, it prohibits others from infringing the trademark unless the owner grants a third party a licence to use the trademark or transfers the trademark. Finally, the owner can pledge the trade mark as security to secure a debt. Registration of a trademark thus grants trade mark proprietors a monopoly over the particular mark.
In addition to distinguishing the goods and services of proprietors from those of their competitors, providing an indicator of their origin and providing a quality guarantee, trademarks also have a marketing function. It reminds consumers of the goods or services associated with the trademark. Therefore it serves as a promotional tool in commercial transactions. Advertising is growing in modern commerce and in this way a trademark is used to create demand for a product. Advertising without the use of a trademark has less impact because it is the trademark that triggers recognition for the consumer.
The speed at which the popularity of memes has grown has been so rapid that within social media, pages relating to particular memes have developed. These range from memes relating to television programmes and even to professions. What is even more impressive is that there are examples of businesses being formed out of the reputations gained from these meme pages. Recently a merchandise selling business in Cape Town was formed as a result of the success of the owners’ meme page named ‘Vannie Kaap’, its client base developed from loyal Capetonian fans who religiously follow their page as they can relate to the unique culture in Cape Town. As can be expected, they also make use of their page for the purpose of advertising. It would seem that a winning formula was developed to get across a message, which is a prime purpose of advertising. This would seem to bode well for the advertising aspect of any business.
There is a growing trend in the use of memes. As the digital era is becoming increasingly dominant worldwide it seems prudent to make use of this digital momentum in an attempt to maximise profit through advertising. However, it is vital to ensure that all trademarks related to the meme are properly protected in order to prevent vulnerability to infringement.
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A recent decision of the Mauritian Industrial Property Tribunal (the “Tribunal”) will provide some comfort to international brand owners. The case involved an application by a foreign company to cancel a trade mark registration obtained by a local party.