Would you try to trademark the coronavirus in your brand? Some SA companies have | Fin24
 
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Would you try to trademark the coronavirus in your brand? Some SA companies have

Mar 27 2020 05:02
Carin Smith

The coronavirus pandemic reached South African shores in early March, and some companies have already applied to have coronavirus-related brands registered.

The South African Trade Marks Office has received applications for the brands Covidban, Corona Guard and Corona Care, according to Bernadette Versfeld, who specialises in intellectual property law at Webber Wentzel.

"This is not a complete surprise. There are always opportunists rushing to register a trade mark and this time they are seeking to benefit from the biggest news story of our time," says Versfeld.

All three marks have been applied for in the pharmaceutical goods category and one is described as an antiviral sanitiser.

The trade marks register is normally in the public domain, though at the time of publication, the trade marks office had closed until the end of April due to the lockdown.

In Versfeld's view, the use of the terms corona or covid are actually examples of a weak trade mark. This is because they are entirely descriptive of the goods the businesses are seeking to market.

"No one can claim a monopoly to these words, certainly not in relation to these types of products in any event," she says.

Furthermore, given that SA is still in the reasonably early stages of the pandemic, she foresees that further applications of this nature are likely to be filed.

For her it would be interesting to see how the examiner at the Trade Marks Office deals with these applications.

"Of course the incorporation of the Corona trade mark for pharmaceutical products and subsequent use, raises the question as to whether Constellation Brands, the owner of the beer label Corona will oppose the trade mark applications given that Corona is well known in relation to beer," suggests Versfeld.

"We can only hope that more inventive and distinguishable brands than 'Covid' are created for products being made to combat Covid-19."

She told Fin24 on Thursday that the point of having a brand is so that you can distinguish your goods and services from others'. So, the more distinct the better. For example, no-one would think of registering a trade mark "apple" if they sell apples. Yet, using it for a product not normally being associated with the word, an electronics company, is brilliant in her view.

She often finds that people want to register entirely descriptive marks - like "excellence" for training and education services.

"If you want to build brand value and spend so much on marketing, packaging, social media and more, the brand must at least be able to stand the test of time," she says.

"Why would you want to develop a brand and put so much money into it when one day, when the coronavirus pandemic is over, the brand can have a negative connotation?"

In her view, the trade marks office will likely refuse to register the corona-related marks applied for in SA, because, if, for instance the manufacturer wants to insinuate that a product will kill the virus, how will they prove it?

In any event, the Trade Marks Office already had a backlog before the coronavirus curbing 21-day lockdown was announced. The office will only reopen on 1 May.

Versfeld expects these corona-related marks will likely only be examined in 10 to 12 months' time due to the backlog. However, nothing stops someone to start using a name once it has put in an application to have it registered.

South Africa is not the only country to have seen applications of this kind in recent weeks. Late in February, a US publication reported that an application for a Covid-19 trademark had been branded "opportunistic" and unlikely to succeed

webber wentzel  |  law  |  coronavirus  |  brands
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