A long, long time ago - on 11 July 2004 to be precise - an article appeared in the South African Sunday Times under the following heading:

Branding of a Nation

Countries, Cities and Towns are building their images to market what they stand for.

So what, you say? Well, it shows that the concept of nation brands has been with us for many years. The notion that cities, provinces and even countries can have brands, in the same way that companies and individuals do.

Nation brands tend to be used for promoting investment and tourism. In South Africa we have Brand South Africa – go to the website, www.brandsouthafrica.com , and you’ll read that the organisation Brand South Africa  was created to ‘help create a positive and compelling brand image for South Africa’, and that its ‘main objective is the marketing of South Africa’. The organisation offers information and media services, as well as services aimed at getting South Africans to give something back to the community. It describes itself as the ‘official custodian of Brand South Africa’. It has a logo that features the name South Africa, a device that’s clearly derived from, and evocative, of the South African flag, and the slogan ‘Inspiring new ways’.

A recent article that appeared in the publication Managing Intellectual Property shows a large number of nation brands, from those of big players like Brazil, Britain, and France, to those of much smaller ones like El Salvador, Malta and the Maldives. In almost each case the name of the country is written in a jaunty style, and accompanied by a logo and imagery that could be described as happy and cheerful.

The Managing Intellectual Property article discusses the fact that certain countries are agitating for some form of specific or sui generis legal protection for nation brands. Jamaica is one of the countries that is in favour of this move, and at a recent conference it said that it wants ‘to protect country names against conflicting marks, business identifiers and domain names, and prevent use of indications consisting of or containing country names in relation to goods or services which do not originate in the country indicated by the country name.’

Not everyone is convinced. The USA, for example, has warned that it could have serious consequences for companies whose names feature the names of countries, especially where that usage is fanciful. An example that comes to mind is the UK supermarket chain Iceland.  The article also questions whether the proposed protection would apply to translations of names, and whether it would affect adjectival usage of country names, such as the brand French Connection.

It’s still early days, but it will be interesting to see where this goes. The reason why it’s even an issue, of course, is because country names are very difficult to protect by way of trade mark registration. That’s because names that are non-distinctive, and names that are indicative of geographical origin, are generally excluded from trade mark protection. A good example of this came up recently, when the Principality of Monaco failed in its attempt to register in the European Union the name Monaco for various goods and services, including computer software and printed matter, as well as transport, entertainment, accommodation and sporting services. Unsurprisingly, the court held that for most people in the EU, the name Monaco would be understood as designating either the geographical origin or destination of the goods or services. Nation branding is, I suspect, one of those areas where there’s something of a disconnect between the concept of a brand and the concept of a registrable trade mark (see our article on taste brands which makes the same point).

It’s conceivable that protection for nation brands could be achieved through the existing trade mark statutes, in much the same way that official flags and emblems are protected – the South African Trade Marks Act, for example, makes it unlawful for anyone who doesn’t have the requisite authority to register as a trade mark anything that imitates the flag or armorial bearings of any country.  Could these statues be amended to cover the new jaunty national brands that we see on TV adverts all the time?  It’s possible, but unlikely I think!

Another option might be something brand new, perhaps a bit like the protection that is granted to geographic indications. Many readers will know that this form of protection is very big in Europe, where it’s possible to get Protected Geographical Indication (PGI) protection for the names of agricultural products or foodstuffs, in cases where they come from specific areas or have qualities that are attributable to specific areas. South Africa has, of course extended this form of protection to certain European names like Champagne and Burgundy and, more recently, to names like Gouda and Roquefort. In return, it has negotiated protection in Europe for names like Robertson and Karoo (Lamb).

The wheels tend to move very slowly in matters like this so I don’t think we should expect dramatic developments anytime soon.