Since the African Democratic Change (ADeC) emerged as a new political party in South Africa it’s ADeC logo has drawn much attention because of its similarities to that of the ANC logo. The similarities included the use of the black, green and yellow colour combinations, the hand holding a torch, and the flag-flame flying concepts. The African Democratic Change (ADeC) has since made changes to the colours of it’s logo.
Trade Mark Infringement and Passing Off
Under South African law, in addition to the monopolistic rights acquired by the registration of a colour combination, it is possible to acquire proprietary rights in colour combinations if one can establish a reputation therein.
For the purposes of passing off proceedings (ie where the colour combination has not been registered), the question then is whether, as a result of that reputation, the use of the colour combination by a third party (e.g. the ADeC logo) may result in a likelihood of deception or confusion amongst a substantial number of interested persons.
By simply comparing the colour combinations of the first ADeC logo with that of the ANC logo, one can see that arguments for a likelihood of confusion become greater.
(1) If the ANC did NOT register it’s colour trade mark, they would need to show that they used the colour combination first and have acquired a reputation as a result of such use, and that there is a likelihood of confusion caused by the ADeC logo colour combination.
(2) If the ANC registered it’s colour trade mark and there is found to be use of an identical combination for identical services, then there is no need to show a likelihood of confusion, and the ANC would be successful.