In the current fourth industrial revolution,
the power of intellectual property (IP) can no longer be ignored; be it in business
activities and even in the most disregarded political settings. IP refers to creations of the mind: inventions;
literary and artistic works; and symbols, names, and images used in commerce.
The same may be protected as patent, utility model, copyright, industrial
design, trademark, and confidential know-how. Principally, a
trademark is a sign capable of distinguishing the goods or services of one
enterprise from those of other enterprises.
In recent times the
international political arena has been fraught with alleged intellectual
property violations. Eminem successfully sued the New Zealand National Party for
infringing the copyright in his hit track "Lose Yourself"; US president, Donald Trump, upset Queen fans by using their renowned hit
"We Are the Champions" for campaign and also his wife, Melania, was
accused of blatantly plagiarising parts of one of Michelle Obama's speeches.
Now it seems to be Namibia's turn.
Those
following political news in Namibia will be all too familiar with a recent news where Popular
Democratic Movement (PDM)
secretary-general Manuel Ngaringombe accused the Independent Patriots for
Change (IPC) of
trying to confuse voters by copying his party's colors. IPC has
over the past few weeks using the blue color on its posters to announce its
candidates for the forthcoming regional council and local authority elections scheduled for November 2020. See the respective logo and poster below.
From an intellectual property (particularly trademark) law perspective, this matter is very is an interesting one and most important to know if any of the parties hold intellectual property rights in the logos or creation as per the provision of the industrial property Act.
The question of ownership of intellectual property rights in
colors is a contentious one as it is extremely difficult for someone to claim
exclusive rights in a single color. A good example to relates to is a Red Bull trademark which is constituted
of the color
combination of blue and silver in respect of energy drinks. The trademark was invalidated,
the court held that
the descriptions of the marks 'allowed for the arrangements of those colors in
numerous different combinations', and therefore the marks did not 'constitute a
systematic arrangement associating the colors in a predetermined and uniform
way'. Hence when applying for a trademark for a color or a
combination of colors, it is vital to ensure that any descriptions for the mark
are clear and precise and that any color combinations are arranged in a
'predetermined and uniform way'.
Generally, when applying for trademark
protection, it is better to not claim any particular color as part of the mark, unless it is essential
to, or is the distinguishing element of, the mark. Trademarks that are not
limited to any one color provide the broadest level of protection, as the
owner will then have the right to use the mark in any color. By including color
as an element of a trademark, the owner is limiting its right to use the mark
to that specific color, which will also make it more difficult to prevent
competitors from using the mark in other colors.
It is also necessary to
bear in mind that one of the founding principles of trademark laws the world
over is that in order to qualify for protection, a trademark must be capable of
performing the basic function of distinguishing the goods or services of one
person from those of competitors. Against this background it is easy to see why monopolizing a
single color is difficult. But the situation with combinations of colors is
slightly different as it is easier to claim rights in combinations of colors
and even more so when the colors are part of a logo with other distinctive
features.
It is not yet decided by the competent authority if there are similarities between the
PDM logo and the IPC posters. As with all trademark
infringement and passing-off assessments, though, the two logos will need to be
compared holistically to determine whether there exists a real likelihood of
confusion amongst members of the voting public.
This event is a reminder of difficulties in obtaining valid trademark protection for a color, even when a trader has used it extensively and acquired a reputation associated with it. Also, it should prompt organizations and individuals to normalize the protection of their inventions and creations with the registrar of intellectual property in the country.
As for this matter; What will transpire, however, remains to be seen.
This article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The content is intended for general informational purposes only.
By:
Onesmus K Joseph - MBA, ACIS, BAP, CFIP, PPL, Cand/MPHIL IP Law
Governance Professional
josephonesmus@yahoo.com
