Billboards have been erected on Joburg’s highways, which read “E tolls. Proudly brought to you by the ANC”.  The ANC have apparently claimed that they did not erect them, and the identity of the advertiser is currently unclear.

Once I recovered from my initial chuckle, I wondered whether there is any action that the African National Congress (“ANC”) can take to have the billboard removed, should it not violate any of the laws and regulations enforced by Independent Electoral Commission (“IEC”).

From my initial reaction and that of the callers into the morning talk show that I was listening to when I first heard about the billboard – driving along the soon-to-be-tolled N1 highway, it appears that no one believes that the billboard emanates from, or is endorsed by the ANC.  If so, the advertisement is unlikely to be regarded as ordinary infringement of the ANC trade mark which would require that motorists be confused into thinking that the advertiser is the ANC.  Further, although it clearly disparages the ANC, the information can hardly be regarded as false. To my mind, it falls squarely in the realms of satire or parody - it certainly catches the eye and is amusing.

In case the ANC is not amused, the question then becomes ‘is the statement on the billboard likely to dilute or erode the reputation that has been established in and to the name and trade mark ANC, and can the ANC approach a Court for the additional protection against infringement that is afforded to well known trade marks?.

The statement on the billboard reminds me of the Laugh it Off case. In this case the Constitutional Court found that a parody of a well known beer slogan did not infringe trade mark rights that had to be balanced against the T-shirt makers constitutionally protected right to freedom of expression.  The parody was therefore permissible.  Similarly, I believe that the ANC will be hard pressed to persuade a Court that use of this slogan infringes any of their well known trade mark rights.

It seems that whoever is responsible for the billboard may have managed to colour within the lines, as far as trade mark law and the Advertising Standards Authority’s code is concerned.