On 16 December 2013, Reconciliation Day, the 9m statue of South Africa’s beloved Madiba was revealed at the Union Buildings in Pretoria. 

Only later, and with the use of strong pair of binoculars, did it become known that the sculptors, Andre Prinsloo and Ruhan Janse van Vuuren, had added their own “small trade mark” to their work - a tiny rabbit in the ear of the Madiba statue.  Apparently, the Department of Arts and Culture had not allowed them to engrave their signatures on the trousers of the statue – so they placed the rabbit in the ear of the statue, in order to identify their work.

The question that has to be asked, is could this rabbit in the ear, possibly serve as a trade mark? A mark is defined in terms of the Trade Marks Act as any sign capable of being represented graphically, including a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container for goods or any combination of the above.   To constitute a trade mark, the purpose or function of the mark should simply be to distinguish the goods or services of the proprietor of the trade mark, from the same kind of goods or services of a third party.  The trade mark has to be capable of being represented visually and has to be used upon or in physical or other relation to the goods.

The rabbit in Madiba’s ear has certainly been represented graphically and appears “upon” the statue created by the sculptors.  I am unaware of any other sculptors using a 3-dimensional rabbit to identify their work.  There can be no doubt that members of the public will now, particularly after the attention given by the media to this story, associate the little 3-dimensional rabbit, used in respect of sculptures, with Prinsloo and Janse van Vuuren.

Accordingly, the 3-dimensional rabbit which has been used by them in my view, constitutes a very distinct and unique trade mark.  When filing the trade mark with the Registrar of Trade Marks, care should, however, be taken in completing the relevant TM 1 form, as a representation of the relevant mark, suitable for reproduction, has to be affixed to the form and should not exceed 8.5 cm in width and 10 cm in length.

Whether the Department of Arts and Culture will allow the rabbit to remain in its current spot, is still to be decided.  Would Madiba have approved of his little companion?  From stories told about Madiba in the press and his sense of humour, I would like to think so.