You, the Brand

Words: Legalese |Illustrations: Eva Faerch

What comes to mind when you think of names like Nike or PlayStation? What about personal brands like Elon Musk or Kanye? A name, or a ‘brand’ as we’ve come to understand it, can trigger a host of emotions, associations and memories.

A brand is essentially a name, logo or slogan that differentiates you. These simple words or graphics have the potential to become more valuable than any fine art, primarily by building the public’s positive associations with the brand. The legal term for this is ‘goodwill’, its attractive force.

Where there is value, there is also risk, and as an influencer with a personal brand, you carry the risk of others leeching off your brand and goodwill, skewing your story or image with negative associations, or exploiting your personal brand and diminishing its value.

We spend years building our brands so that they’re recognizable. Our advice, as your lawyers, is to spend the next few minutes reading, so you can know how to not only build your brand, but protect it as well.

Personality Brands

In South African law, we don’t have a standalone right of identity like many other countries. For example, a company could apply a guerilla-marketing campaign, referencing your persona, without you even knowing it or giving your permission. If you can’t prove that their campaign has either invaded your privacy, harmed your reputation or created the false impression that you are in some way associated with their business, they’ll get away with it.

Benefits of Registering a Trade Mark

Registering a trade mark upgrades your brand, providing leverage for you to stop other people using your brand, and forcing them to pay you royalties if they do. Sound narcissistic? Locals Brian Habana, Rolene Strauss and Oscar Pistorious have all registered their names as trade marks.

It also helps prevent cyber-squatters from registering abusive domain names with your brand, and you’ll get first dibs on new domains. On some social media sites, you can use the fact that you have a registered trade mark as a means of stopping others from registering a handle with your mark.

You can get paid if someone uses your mark, collecting royalties for any unauthorised use. Without a registered trade mark, you’ll need to prove that you have suffered actual damage by someone using your mark you without your permission in order to get paid out – it may not be easy but worth it to get that paper.

Registering a mark means that your rights are presumed – if you’ve registered your mark, then it becomes their duty to go to court and disprove your rights, instead of the other way around. Long story short: the odds are in your favour. Remember, you only get rights in those countries where you’ve gained a reputation or registered it.

Choosing the right brand

Ultimately, your success will be determined by how good you are at what you do but a good name doesn’t hurt. Before you build goodwill in your brand, you’ll want to ensure that it isn’t an obstacle to your success.

A strong brand tells a good story, one that could sit proudly on the first page of Google search results. When you’re choosing your name, go for something that is distinct and can be searched easily, has available internet domains, social media handles and is obviously trade-markable.

You can register your own full name as a trade mark, unless it is clearly intended to cause confusion – sucks for you if you share a name with someone famous. To register a single name it has to either be unique or you’ll have to prove that the public considers the name to specifically refer to you. Kanye and Oprah qualify, while Kim Kardashian will probably never get rights in Kim – it’s too widely used.

Made Up Names

If you are registering a nickname, it’s important to be distinctive, because some words are just too common to be protectable. For example, Oscar Pistorius’ application to register the name ‘Blade Runner’ was rejected, because it was already taken (by something much more likeable at that). Calling your fashion blog, ‘FASHION BLOG’ makes the name impossible to protect. Make sure that the word combination is unique or add something novel, like a misspelled word such as ‘FASHN’.

Being distinctive not only makes you edgy as hell but also improves that SEO. It gives your brand more space to exert control over its meaning and goodwill without outside influence from other brands. With that said, don’t forget to police your brand. If you let others get away with using it for too long, they’ll build up their own rights in the name, and it will be too late to enforce your rights.

To help you decide what to pick, try searching for your proposed brand:

•  Across various domains and social media sites: https://namechk.com/
  
•  On South Africa’s free trade mark search here (or contact us for advice or to do a comprehensive search on CIPC’s site looking at all possible conflicts).
  
•  On Google, selecting “South Africa” as a country (under search tools).
  
•  For international trade marks, go here, to get a sense of what you may be competing with.
  

If you are struggling with the trade mark searches (and classes), contact Legalese and they'll help. They will also check for free if your exact brand (word or phrase) is not yet registered in South Africa.