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Regulatory opinion

Vuvuzela is in public domain

Following press reports on who owns the rights to the vuvuzela, it is not clear whether these parties are claiming rights to the trademark vuvuzela, or the rights to the product itself, so it is instructive to look at the history of the vuvuzela.
Freddie Maake, a fanatical Kaizer Chiefs supporter of Tembisa, claims he was the first person to create a vuvuzela, albeit an aluminium version in the 1970s. Maake claims that in 1999, with the assistance of Peter Rice, he produced a plastic version of the vuvuzela. He claims that until the late 1990s, he was the only owner of a vuvuzela and the only user of one at soccer matches. In 1999, he launched an album called Vuvuzela Cellular which features this instrument.

Neil van Schalkwyk, a director of Masincedane Sports, a company that has been manufacturing plastic vuvuzelas since 2001, is also claiming rights to the name vuvuzela. The Nazareth Baptist Church has now also stated that the trademark ‘vuvuzela' belongs to it. It claims that it has been using the vuvuzela since 1910.

No patents

However, no one has done the groundwork required to give effect to ownership of the vuvuzela. There are no valid patents or designs registered for the ‘musical instrument' now called the vuvuzela. Even if this instrument could have formed the subject matter of a design or patent registration, the opportunity of doing so has long come and gone. The only question now is who, if any, is the owner of the vuvuzela trademark.

Trademarks

According to the records of the South African Registrar of Trade Marks, 40 trademark applications, by numerous persons and entities, have been filed over the past eight years for the registration of trademarks incorporating vuvuzela. These trademark applications are in relation to a wide variety of goods and services.

One of the applicants for these trademarks is Rory Peter Rice (presumably the same person who assisted Maake with the manufacture of a plastic vuvuzela), who in 2004 applied for registration of the trademark vuvuzela in respect of a ‘plastic trumpet'. Three days before Rice's application, Masincedane Sports also filed an application for the trademark vuvuzela in relation to ‘musical instruments', a Mr Mafokate applied for the registration of the trademark vuvuzela in 2003 and in 2009 so also did Messrs Urbas, Kehrberg and Bartels, all German citizens.

All of the vuvuzela trademarks are still pending, which means that now no single party can claim to be the registered proprietor of the vuvuzela trademark in South Africa. The Registrar has accepted Masincedane Sports' application but it would appear that this trademark is currently under opposition, presumably by one of the other people who claim to own the vuvuzela.

Sales online

Despite the fact that no-one can claim to be the registered proprietor of the vuvuzela trademark in South Africa, the question still remains whether any party can claim to be the common law proprietor of the trade mark. A search of the Internet revealed that there are many entities or persons making use of the vuvuzela as a musical instrument. It would appear that most, if not all consumers regard the trademark vuvuzela as not belonging to any single person.

For example, one can buy vuvuzelas on www.vuvuzela.co.za, which would appear not to be linked to either Rice or Masincedane Sports. The website that can be found at www.boogieblast.co.za also advertises vuvuzelas. There are other websites, such as www.southafrica.info, which openly state that the vuvuzela belongs to the people. Even if one looks at the website of Masincedane Sports, which can be found at www.vuvuzelas.com, there is no claim on the website that the company regards itself as the owner of the trademark.

In fact, quite the contrary, on its website Masincedane Sports appears to use vuvuzela in a sense to indicate that no single party can claim a monopoly on the name.

Generic name

Section 10(2)(c) of the South African Trade Marks Act provides that a mark that consists exclusively of a sign or indication which has become customary in the current language is not registerable as a trademark. In short, a word that is used by all and sundry to describe a particular thing cannot be protected as a trademark as the word has become generic.

It would appear that the people of South Africa use the trademark vuvuzela to describe a type of ‘musical instrument'. It can therefore be argued that the trademark vuvuzela has become generic and that no single party will be able to claim ownership of the name vuvuzela when referring to the ‘musical instrument'.

It follows therefore that the people of South Africa are free to use the name vuvuzela to describe the instrument that has also been described by the then journalist, now ambassador to Uganda, Jon Qwelane, as "an instrument of hell".
    
 

About the author

Carl van Rooyen is a partner and the head of the Trade Mark Litigation Department at Spoor & Fisher, one of South Africa's leading Intellectual property law firms, specialising in all aspects of intellectual property law including patents, trade marks, copyright and designs, related litigation, commercial transactions, due diligence and portfolio management. Carl can be contacted on +27 (0) 12 676 1288 or .
Anonymous
Tibetan's also use a type of Vuvuzela-
Tibetan monasteries also use a long trumpet similar to a Vuvuzela for their ceremonies. It's similar to the Shembe one, however, the Tibetan ones are more beautifully decorated however, with copper, bronze and wood engravings and no doubt date back centuries.
Posted on 10 Feb 2010 11:53
Carel
Vuvuzela ownership-
At least this proof that it is not the cultural inheritance people claim it to be. (The use of) it in public space should be banned based on the the noise pollution legislation anyway.
Posted on 11 Feb 2010 14:20
TDP
Stay away from soccer-
Vuvuzela's claim to fame is that it will stop me from attending any soccer match (or even watching it on TV) because of it's terrible noise.
Posted on 12 Feb 2010 15:29
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