The Most South African Airways

by Jessie

I love Kulula. I do. They’re funny. They’re green. They have ticket sales all the time.

And they seem to be the only low-cost airline that isn’t going under.

So I take their side most of the time, especially when SAA gets a R5bn grant to stay a-float…or a-fly.

And they are about to be sued for their latest re-branding  by re-branding Kulula as ‘The Most South African Airways’. They may get sued for it, but my gosh will they go down in style. They asked South Africans what it means to be South African, to create a profile on Facebook and really to get involved in the whole process. They then followed this advice and launched their new Boeing 737-800 fleet. At this launch they had Jack Parow and comedians and hipsters and mammas and everyone that makes South Africa South Africa. They gave away popcorn, they had a choir inconspicuously scattered around the plane singing our national anthem. They embraced being South African.

The only thing slightly scandalous of course can be seen in the picture below.

Image

 

 

 

And the picture below that one.
saa

You see?

It’s like the ‘spot the difference’ in the Sunday Times (which, let’s face it, can only be finished with a magnifying glass!).

On the topic of their re-branding strategy, their marketing manager put it like this: “We thought long and hard about a slogan that truly represents who we are as an airline and communicates our passion for South African travel, and this was the most fitting.”[1]

Yes they most certainly have.

Yes Kulula. We know what you’re doing.

And we know you know. I mean, this ‘press conference’ video says a lot:

Some of us love it, others wonder if it’s legal. Let’s talk about the latter.

By having a look at the planes, by thinking of the wording…your gut tells you something’s up. And you should probably feel sorry for SAA. But why?

According to the Trade Marks Act[2] there are three types of trade mark infringement found in s 34 (1), [3] namely:

(a)     The unauthorised use in the course of trade in relation to the identical goods or services, of an identical mark or a mark so nearly resembling it as to be likely to deceive or cause confusion;

(b)     The unauthorised use in the course of trade of an identical or similar mark, in relation to goods or services which are so similar that there exists the likelihood of deception or confusion;

(c)     The unauthorised use in the course of trade in relation to any goods or services of an identical or similar mark, if the registered trade mark is well-known in the Republic and the use of the other mark would be likely to take unfair advantage of, or be detrimental to, the distinctive character or repute of the registered trade mark.

By hearing that, s 34 (1) (c) sounds most similar to our sticky situation. So surely SAA can just claim this and Kulula must kiss their toes and edit their Photoshop plane?

They could. But if they do do that, then Kulula will probably read just a little bit further, to s 34 (2) (b)[4], which says that it is not an infringement on a trade mark if:

the use by any person of any bona fide description or indication of the kind, quality, quantity, intended purpose, value, geographical origin or other characteristics of his goods or services, or the mode or time of production of the goods or the rendering of the services;

They could then argue that ‘The Most South African Airways’ is exactly what kind of an airways they are. Of course, they’d have to show that they acted in a bona fide way (with good faith). That might be hard to prove with their legal suit against SAA on the roll.

Let’s see how it all rolls out!