Johannesburg – Third mobile operator Cell C’s new logo has been provisionally rejected by the Registrar of Trademarks and legal experts are pointing to the prevalence of the copyright symbol in the new logo as a possible cause.

According to Cell C’s trademark application form, on Cipro’s Online IP services, the provisional refusal was made on 2 August. Despite this, the operator nonetheless rolled out its campaign on 4 August.

However, Cell C says that statements saying “the application for the registration of the new Cell C logo has been provisionally refused by the Registrar” are incorrect. “Our response is that this is highly unlikely as the application would not have been examined yet by the Registrar,” says the company.
ITWeb, however, is in possession of the online document clearly stating that the new logo has been provisionally refused on 2 August.

Most noticeable in the new logo is the replacement of the old red dotted “C” with a new black and white symbol depicting a “C” within a solid black circle – a replica of the legally required copyright symbol.
However, company CEO Lars Reichelt explains that the new logo reflects Cell C’s vision of understanding its customers and tailoring solutions around them. The white space between the black “C” and solid circle is symbolic of the customer.

“There is no significance in the Cell C Logo resembling the copyright symbol. Primarily, the “C” in the centre represents Cell C putting the customer at the centre of everything it does. The logo is not designed to look like the copyright symbol,” states Simon Camerer, marketing executive at Cell C.

Reichelt maintains that, on the advice of legal experts, the company has covered any potential legal issues in its 12-month corporate identity turnaround strategy. “In terms of the logo, we have considered all angles and have made applications to register our various new logos and payoff line as trademarks. This process can take up to two years to be finalised,” he states.

When questioned recently at a press conference as to how much the entire campaign cost, Reichelt erred on the side of caution saying that it was a lot, but not that much when compared to the R7 billion cost of its new network and IT infrastructure.

He did, however, state that Cell C was spending in excess of R160 million to re-brand its stores with the new corporate logo.

Now it’s been revealed that the logo has been provisionally refused by the Registrar of Trademarks, jeopardising the company’s ability to obtain a trademark for its new logo.

Trademark at risk

The reason for the refusal has not been revealed, but legal experts say that the resemblance of the copyright symbol in Cell C’s new logo maybe a contributing factor.
“It is not possible to determine from online records what the reason for the provisional refusal was – this can only be determined by obtaining a copy of the application file. The applications were provisionally refused and the applicant can make representations to the Registrar of Trademarks in an attempt to overcome the provisional refusal,” explains Eben van Wyk, director for Intellectual Property at law firm DLA Cliffe Dekker Hofmeyr.
However, van Wyk points to copyright regulations that may have led to the refusal: “In terms of Regulation 10 of the Regulations to the Trade Marks Act 194 of 1993, subject to the provisions of any other law, the Registrar of Trade Marks may refuse to accept any application for registration of a trade mark upon which any of the following appear: (b) the letters “(R)”, “(C)” or similar combinations which may be construed to import a reference to registration.
“This discretion would obviously depend on the manner in which the (C) is used in the trade mark and whether it may be construed to import a reference to registration. I think it is at least arguable that the use by Cell C would not be construed to import a reference to registration, in particular if the (C) is always used in combination with the word ‘Cell’,” he explains.
Van Wyk explains that the company is not yet at risk of losing its trademark as Cell C’s legal team will likely appeal the decision until the issue is resolved.
He notes that even if hypothetically all appeal efforts were to be rejected the most the company stands to lose is its trademark. In this case, explains van Wyk, Cell C would still be able to use its logo but it would just not have a trademark on it.
However, digital media lawyer Paul Jacobson argues that Cell C is set to face a number of copyright and trademark issues if it continues to use the new logo.
Market challenges

According to Jacobson, using such a well-known symbol in its logo may open the door for challenges to the trademark’s registration, where reliance is placed on the circled “C” itself on a couple of grounds.
“Cell C has no claim to own the circled ‘C’ symbol; the circled ‘C’ symbol is a well-known symbol internationally in a very different context; the circled ‘C’ symbol is already in widespread use in SA, including by Cell C’s own competitors, in copyright notices; or the symbol may even cause confusion to a degree,” he argues.
“[The problem] with the new logo is that Cell C’s competitors may immediately be infringing the trademark where their copyright notices are prominent relative to their promotional materials on their Web sites and elsewhere. MTN and Vodacom have copyright notices with the copyright symbol on their Web sites and have done so for some time now,” he continues.
Jacobson is also concerned of the impact the logo will have on the copyright symbol itself. “Another concern is the impact this logo choice may have on general awareness of the copyright symbol and its meaning, generally speaking.
“The new Cell C logo dilutes the value of the copyright symbol as a distinctive symbol for copyright and content protection generally, particularly where there is relatively little understanding of the value of respecting copyright and content owners’ rights,” he concludes.