Covid Hair Don’t Care! And other strange pandemic trademarks

pandemic-related trademarks

STEFAANS GERBER

Snr. Associate | Attorney

BIANCE MYNHARDT

Associate | Attorney

Coronavirus and COVID-19 are words that dominate our conversations, our business dealings and government policies. Strangely enough, it has also become a commonplace issue for intellectual property practitioners around the world.

According to the International Trademark Association (INTA), trademark applications comprising the terms “coronavirus,” “COVID-19,” and other associated words have flooded IP offices globally. This kind of phenomenon in trademarks is nothing new. IP offices such as South Africa’s CIPC must often deal with applications relating to major news or viral events. Elsewhere, there were attempts to trademark JE SUIS CHARLIE in response to the shooting at the offices of the French satirical magazine Charlie Hebdo; and COVFEFE, following U.S. President Trump’s tweet that went viral in May 2017.

Trademarks filed with various IP offices in light of the current health crisis range from simply CORONAVIRUS and COVID-19 to more creative terms like EVEN HATERS HATE CORONA VIRUS, COVID PRO QUO, CORONA BABY, COVID HAIR DON’T CARE and COVID KID.

Can these examples be granted trademark protection? Trademarks are territorial and registration only grants rights in the country in which the trademark is registered, so each IP office would have to make its own determination on grounds of the applicable local legislation and practice. Most trademark laws follow the principles that in order for a trademark application to be successful, it should be distinctive, it should not be offensive, and it should not be misleading or deceptive.

A trademark is a mark that distinguishes the goods, services or cause of one undertaking from those of other undertakings.

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This can be done in the form of words, drawings, signs, symbols, colours, sounds or some combination of these. A trademark can also be a slogan, name, logo, or specific shape.

In order to be eligible for trademark protection, the sign must be distinctive, meaning that it must be capable of distinguishing itself from similar products and services offered by different parties. Not surprisingly then, trademark applications bearing the name of a worldwide pandemic that consist solely of “coronavirus” and “COVID-19” (alone or combined with a descriptive term) covering medicines, medical equipment, and services, would likely fail the test of distinctiveness.

Trademark laws generally include provisions preventing the registration of trademarks that are morally offensive or that may disrupt public order. One could argue that trademarks relating to the pandemic are truly offensive to people who suffered or are suffering due to the current health crisis, so many coronavirus-related applications would likely fall at this second hurdle.

Of course, pandemic-related trademark registrations are a small and amusing corner of the IP universe, but they help to illustrate the vitality of a free market system where inventiveness and creativity are rewarded. Registering your trademark is an important part of your business strategy and could lead to greater profits. The exclusive right means that no one else has the right to use the mark for their goods and services or in their own marketing. This assists in building the brand of your business and to expand the goodwill and reputation that vests in your business.

For advice on registering and protecting your ideas, inventions, brands and creative works, get in touch with our team and we’ll be happy to talk you through your IP rights options.

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