Image source: travelstart.co.za

According to a 2013 news article on News24, Kulula has “all but hijacked SAA’s recognisable branding” for their fleet. The question that comes to mind is whether Kulula has perhaps in fact “hijacked” SAA’s recognisable branding. If you compare the branding of the new Kulula fleet with SAA’s current branding, at least the following unlawful acts come to mind:

Trademark Infringement

SAA has registered trademarks for the name SOUTH AFRICAN AIRWAYS and the colour logo. Once a Trademark is registered in South Africa it is protected under the Trademarks Act No 194 of 1993 and subject to certain requirements. A registered trademark can be protected forever provided it is renewed every 10 years upon payment of the prescribed renewal fee.

Passing Off

SAA may claim that Kulula has deliberately copied the “get up” of its planes to cause confusion or deception. The branding of the tail is nearly identical and the wording SOUTH AFRICAN is positioned exactly on the same place on the plane and in a very similar font. Passing off is both a common law tort and a statutory cause of action referring to the deceptive representation or marketing of goods or services by competitors in a manner that confuses consumers.

Would SAA be able to stop them?

It’s not a given that SAA would be able to stop them. There are several aspects that would make this a very interesting case indeed. Firstly, Kulula is using the trademark “South African Airways” descriptively and not “as a trademark”, something that the Trademarks Act allows in certain circumstances.

Secondly, the trademarks in question here include the words “South Africa” and the South African flag, things that nobody can claim to have a general monopoly to. Thirdly, who is going to really be confused? Nobody is going to accidentally buy a Kulula ticket when they actually intended to fly with SAA?”