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LOERIE AWARDS ASSOCIATION OF
MARKETERS
Bryanston
PROTECTION OF INTELLECTUAL PROPERTY,
BRANDS AND BRAND EQUITY AS A FUNDAMENTAL RIGHT
The Loerie Award
Committee, represents the interests of the advertising/marketing industry in
South Africa, we welcome the opportunity
to lodge an objection under Schedule 4
- Trade, and with reference to the Property Clause Section 25.
Our
initial submission was incorporated in the refined working draft of 18 March
1996. There were 4,419 petitions proposing the inclusion
of an intellectual
property clause. This important factor was omitted from the constitution. It
is almost inconceivable that this
request, coming from major business in this
country, could be ignored. The reason for our submission was that there was no
clear
delineation between fixed property and intellectual property, we are
deeply concerned that the highly interpretable sentence - Chapter
2 Section 25
4(b) Property "is not limited to land" does not address the
issue.
Intellectual Property
Brands as a species of
property are protected by, and embodied in intellectual property laws in South
Africa, as in all offer free
market countries. More particularly they are
protected by registration as trademarks, as literary and/or artistic works under
the
law of copyright and under the common law of passing-off. Affording
constitutional protection to brands in effect involves affording
such protection
to intellectual property.
Intellectual property is a form of incorporeal
property which does not have a material form in contrast with other forms of
property
such as land (immovable property), motor vehicles, furniture etc
(movable property). Incorporeal property, and measures which are
designed to
protect corporeal property, especially land, have no application or relevance to
intellectual property. The provisions
of Chapter 2 Section 25 of the Bill of
Rights are clearly aimed at granting protection to mainly land and are entirely
inapposite
to intellectual property. It is accordingly submitted that, it is
accepted that brands and brand equity, as a species of intellectual
property,
ought to be protected under the constitution. It was contended that a special
clause was required, dealing with brands,
brand equity and other forms of
intellectual property in the constitution.
We therefore earnestly request
that this omission be corrected and that the following paragraph be considered
:
"Everyone has the right to the protection of the moral and material interest
resulting from any artistic, industrial, scientific
or literary production of
which they are the creator, or trademark, brand or brand equity of which they
are the proprietor".
Difference between products and
brands
Brands are a much broader concept than a mere trademark which
is merely that part of a brand that is given legal protection because
it is
capable of exclusive appropriation.
A product is something that is made
in a factory, a Brand is something that is bought by a customer. A product can
be copied by a
competitor, a Brand is unique. A product can be quickly
outdated, a successful Brand is timeless.
Advertisers invest millions of
Rand in developing a product, they then need to Brand these products, which is
usually done through
marketing communications (advertising and sales promotion).
Physical and psychological differentiation of the products is needed
to set them
aside from competitors. This is done by product innovation and by positioning
the product in the minds of consumers
by means of advertising. To accomplish
this they create a Brand personality which is a highly intangible thing. This
positioning
and personality is reinforced with slogans and devices which become
the marketers' ‘property’.
Brands are the major equity of
most marketing companies. Brand equity is based on Brand benefits and value as
perceived by consumers.
Uniqueness is at the root of Brand value.
The
importance of brands is demonstrated by the fact that they are now presented on
companies' balance sheets like any other company
asset. Kraft Foods for example
was purchased for nearly US $13 Billion, more than 60% above the company's book
value - this premium
is attributable to the brand equity which subsisted in the
company's brands.
This position is based on the recognition that Brand
names and trademarks are amongst the greatest assets - if not the greatest -
of
companies. Hence the principle that it is essential to protect Brand names and
trademarks, and bestow on them similar rights
that an individual experiences
under the Constitution.
Protection of Intellectual Property rights in
a Bill of Rights
Intellectual property has contributed substantially
to the economic success and power of the United States of America, and its
economy.
The Universal Declaration of Human Rights was proclaimed by the
General Assembly of the United Nations in 1948. This Declaration
was intended
to proclaim a common standard of achievement to be striven for by the community
of nations. it sets the international
norm for the protection of human rights.
Article 27(2) of this instrument states the following:
"Everyone has the
right to the protection of the moral and material interest resulting from any
scientific, literary or artistic production
of which he is author. This is
clear enshrinement of the right of the individual to acquire, own and have
protection for his intellectual
property.”
It is significant that
the Universal Declaration of Human Rights deals with property separately from
intellectual property.
In Chapter 2 of the Constitution, South Africa
espouses a market economy. The Constitution should make provision for all the
elements
which will promote a healthy and vibrant economy in South Africa.
Protection of brand equity and other intellectual property is
such an element.
The failure to give proper protection to intellectual property in South Africa
would undoubtedly, seriously inhibit
South Africa's economic development. It is
therefore of paramount importance that the right to intellectual property should
be enshrined
in the Bill of Rights.
South Africa's record in the field of
intellectual property rights is a proud one and there is no reason or
justification whatsoever
why this universally accepted fundamental right should
be omitted from South Africa's Bill of Rights. On the contrary, enshrinement
of
protection of intellectual property rights, will give formal recognition to one
of the few fundamental rights which South Africa
has honoured in the past, and
should continue to do so in the future, particularly in truly democratic
dispensation.
Our request that the enshrinement in the Bill of Rights of
protection for brand equity and other intellectual property rights, in
keeping
with the Universal Declaration of Human Rights, is viewed very seriously by us,
and a high priority is placed on achieving
our objective. The Loerie Committee
cannot accept a situation where brand equity, which is every bit as important as
rights, such
as privacy, freedom of expression and economic activity, (all of
which are also embodied in the Universal Declaration of Human Rights)
is not
given the due protection in the Constitution.
LOERIE
COMMITTEE
31 MAY 1996
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