At present, the wildlife sector is concerned about the poaching of highly valuable species and fears that the number of species being poached is rapidly increasing. One of the species being targeted is the trademark.
A trademark is a species of the genus intellectual property, and is often identified by its code or abbreviation TM or ®. A trademark is any sign capable of being represented graphically which is used in relation to goods or services for the purpose of distinguishing the goods or services from those of any other person or entity.
Trademark registrations protect brand names and logos used in relation to particular goods and services being offered under the mark. The wildlife industry has adopted a plethora of trademarks, comprising names and logos in respect of farms, lodges, wildlife breeders, genetic material, breeds and auction houses. But what is in a name and why protect it?
Trademarks and brands, and the use thereof, provide their owners with reputation and goodwill among existing and potential customers, who associate a certain quality of goods and services with the brand and business. If a party's trademark and its associated reputation and goodwill are poached or abused by third parties, this negatively affects their rights to attract customers and do business, and may even harm the name, reputation and the profits of any business.
The increased activity in the field of exotic wild breeding and auctioning has created a new platform for new trademarks and, alongside that, the possibility of increased poaching or the abuse of trademarks. Record-high prices paid for well-bred animals illustrate the potential value of the name associated with an animal and provide an example of how the breeding line of a particular animal should be protected. Protecting the name of an animal and its breeding line through a trademark registration prevents third parties from using the animal's name or other confusingly similar name in relation to such animals or even breeding services as a whole. In this way, the name can be preserved for the bloodline and associated genetic material for generations to come, and may greatly increase the animal's value.
So what should a rights holder do if its trademark is being poached? The Trademark Act offers recourse for a rights holder in the event of the unauthorised use of its mark. This includes the right to obtain an order prohibiting unauthorised use of the trademark in relation to the same or similar goods or services for which it is registered, as well as the damages suffered due to the infringement.
Applying to register a trademark is an effective and affordable anti-poaching strategy and is highly recommended to all market players, not only as a strategy to conserve the trademark species but also as a means of increasing the value of already valuable assets. Once this form of poaching is under control, valuable time and resources can be channelled into combating the poaching of other species.
For further information please contact Julia Stephens or Fredo Ströh at KISCH IP by telephone (+27 11 324 3000) or email ([email protected] or [email protected]). The KISCH IP website can be accessed at www.kisch-ip.com.