Unlike 20 years ago, when business investors would focus mainly on the tangible assets of a company, today intangible assets like patents and trade marks can make up to 80% of the value of a company. This comes with digital business transformation trends and has accelerated with Covid-19.
Brands and reputation are fundamental in the digital world, the importance of which is seen in profit and loss accounting, assessing the value of companies in distress, the opportunities of mergers and acquisitions, and the purchase or sale of brands.
It is necessary to draw a distinction between brands and trade marks. The brand of a company is the image it presents to the public, and a trade mark is only an aspect of that brand, which can be protected legally and is a unique identifier for the company and its goods or services.
The global pandemic has brought with it a rush of applications for registration of associated trending terms worldwide. Examples of marks applied for in other countries include: “KEEP CALM AND CORONAVIRUS ON” and “COVID 19 WARS” in the UK, “BE COVIDGILANT”, “COVID COUTURE”, “COVIDIOT”, “GENERATION COVID”, and “IT’S NOT JUST CLEAN, IT’S COVID CLEAN” in the USA.
It is questionable whether the terms the terms COVID-19 or CORONAVIRUS are capable of functioning as trade marks in South Africa. The above marks pertain to the global pandemic and contain words and phrases that have become common in everyday language. While the addition of other words or devices might assist in obtaining registration, this provides no guarantee, and the inclusion of descriptive terms could impact the requirement that the trade mark be distinctive enough that it is capable of distinguishing the goods or services to which it relates from those of others.
The origin of the goods or services must be clear. It could be said that there is a direct correlation between the value of a trade mark and its distinctiveness.
While many transactions are still possible without registration, there are major benefits to obtaining this as It is easier to prevent others from infringing the rights granted by registration. Trade mark use can be more closely monitored, licensed (for royalty or licence fees), pledged or sold.
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