In South Africa, Section 10 (12) of the Trade Marks Act states that a mark shall not be registered if it is likely to give offence to a certain class of persons. This clause acts as a limitation of a potential trade mark owner’s freedom to choose brand names and logos as he wishes.
When considering whether or not an offensive mark deserves trade mark protection in South Africa, the registrar must determine amongst many other factors listed in Section 10 of the Act, whether or not it will be offensive to a class of persons in a South African context. It is important to note that the mark must be offensive, more than merely distasteful, for the Registrar of Trade Marks to refuse registration. The Registrar will exercise her discretion in this regard, looking at inter alia the following factors:
- The mark itself as well the meaning of the words in the mark and their context;
- The goods or services for which the mark relates;
- The current use and / or intended use of the mark; and
- The standards of the community.