When humour steps on legal toes

When humour steps on legal toes

On a daily basis, people of all age groups, and in particular the youth, spend time during their day looking at and sharing images containing humorous catch phrases 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 prepares to capitalise on this trend they should consider how the content of these images are 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 trade mark law. Section 2 of the Trade Mark Act defines a trade mark 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 trade mark law when they are used for the purpose of sale of goods and services. The benefits of registering a trade mark are firstly the acquisition of the right to use the trade mark 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 trade mark or one that is confusingly similar in relation to the goods or services that the trade mark protects. Thirdly, it prohibits others from infringing the trade mark unless the owner grants a third party a licence to use the trade mark or transfers the trade mark. Finally, the owner can pledge the trade mark as security to secure a debt. Registration of a trade mark 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, trade marks also have a marketing function.  It reminds consumers of the goods or services associated with the trade mark. Therefore it serves as a promotional tool in commercial transactions. Advertising is growing in modern commerce and in this way a trade mark is used to create demand for a product. Advertising without the use of a trade mark has less impact because it is the trade mark 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 world wide 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 trade marks related to the meme are properly protected in order to prevent vulnerability to infringement.

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