Trade marks slipping through the cracks of loose corporate structures and corporate governance.
We are all aware of the many complex commercial decisions businesses have to make on a day-to-day basis, including budget meetings, marketing meetings, supply chain management, quarterly reports, human resources management issues, and the like.
Many articles have been written highlighting the dangers and risks that these (often overwhelming) decision-making processes and tasks can have when it comes to considering intellectual property protection for a business.
The purpose of this article is, therefore, not to delve into and provide an exhaustive list of common “mistakes” that are often made with respect to intellectual property (particularly trade mark) management. Instead, the aim is to build on the concerns that have been addressed in the past with reference to two recent decisions that have been handed down by the South African Supreme Court of Appeal in the matters of Herbal Zone (Pty) Limited vs Infitech Technologies (Pty) Limited and four others and Morris Material Handling Limited vs Morris Material Handling (Pty) Ltd. Both these judgments highlight the dangers to trade mark owners, from a proof of use perspective, in not setting up their corporate structures properly and not taking greater care in avoiding vagueness and ambiguity in their corporate / marketing materials.