Unauthorised use of a prohibited mark

A trademark is defined as “A mark used or proposed to be used by a person in relation to goods or services for the purpose of distinguishing the goods or services in relation to which the mark is used or proposed to be used from the same kind of goods or services connected in the course of trade with any other person; “

A Trade Mark can be a brand, logo or even a particular shape and is afforded protection under the Trade Mark Acts 194 of 1993 if it is registered with the Companies and Intellectual Property Commission(CIPC).

If a Trade Mark is infringed the following relief may be granted by a court:

• An Interdict;

• An order for the removal of the infringing mark from all material;

• Damages (can include royalties)

The Minister of Trade and Industry may in terms of the Merchantile Act prohibit the use of any mark, word, letter or figure or any arrangement or combination thereof in connection with any trade, business, profession, occupation or event or in connection with a trade mark, mark or trade description applied to goods.

Any person who in connection with its business, trade or profession use the mark or words in a way which indicates that the business is carried on under the auspices of the specific organisation whose marks is prohibited will be guilty of an offence. Prohibited marks may also not be used in marketing material to create an impression that a business or person is employed by or deliver services on behalf of the organisation associated with the prohibited mark.

The Companies and Intellectual Property Commission (CIPC) logo were declared such a prohibited mark in 2010.  The CIPC also recently published a  notice warning against the unauthorised use of the mark or words in marketing material, websites, domain name etc.  Should a business wish to use the logo or words written permission has to be obtained from the CIPC.