When Brands Get Patriotic

Use of the South African flag in your trade mark and products

The South African flag, with its unique design and vibrant colours, is more than just a national symbol. It evokes a deep sense of pride, and shared identity for all South Africans. Unsurprisingly, many South African businesses may be tempted to incorporate the flag into their branding or product packaging (particularly, in view of the upcoming world cup or the current international games) with the purpose of evoking the patriotic sentiment and appealing to local consumers.

Yet despite the perception that the flag ‘belongs to everyone’, the use of the national flag is regulated by legislation. This article explores the legal framework surrounding the use of the South African flag, clarifies what is permitted, and offers guidance for businesses looking to use the flag in their trade marks or on their products.

1. Use of the South African flag on packaging and in advertisements

 The South African national flag is regarded as both a state emblem and a heraldic representation under the Bureau of Heraldry.[1] Its commercial use is regulated primarily by the Heraldry Act 18 of 1962 and the Merchandise Marks Act 17 of 1941.

Under the Merchandise Marks Act, any person who uses the national flag, or an imitation of it, in connection with their trade, business, profession or occupation without the necessary consent commits a criminal offence punishable by a fine.[2]  Similarly, the Heraldry Act prohibits any person, without written authority, from wearing, using, selling, bartering or trading in a state emblem, or any material part, replica, reproduction or imitation that could reasonably be confused with it.[3]

In simple terms, this means that businesses may not use the South African flag on products, packaging, labels, advertising or other commercial material without the necessary authorisation. These restrictions are intended to prevent businesses from exploiting the national flag for commercial gain or using it in a manner that could imply official approval, endorsement or association with the State.

The Merchandise Marks Act empowers the Minister of Trade and Industry to consider applications to use the flag, and to either prohibit the use of the flag, or permit its use subject to conditions[4]. The application for consent is typically submitted to the Department of Trade, Industry and Competition. If approved, the notice of permission to use the flag must  be published in the Government Gazette for thirty days for public comment.

Where permission is granted, it is generally subject to conditions designed to preserve the dignity and integrity of the flag. For example, the flag must be reproduced in its correct proportions and colours, and must not be distorted or altered.

2. Use of the South African flag in your trade mark

The same considerations apply where a business wishes to register a trade mark incorporating the South African flag. The Trade Marks Act and regulations makes it clear that trade marks containing the national flag, or a heraldic imitation of the flag, are not registrable without the authorisation of the competent authority.[5]

In practice, this means that a trade mark incorporating the South African flag, or something that closely resembles it from a heraldic perspective, requires the Minister’s consent under section 15 of the Merchandise Marks Act before it can proceed to registration.

In practice, the Companies and Intellectual Property Commission (CIPC), when  examining trade mark applications will require proof of such consent if a mark contains or resembles the flag. Without it, the trade mark application will likely be refused.

The trade mark will also be vulnerable to opposition or cancellation from third parties, if it does not comply with the applicable legal requirements. Section 10(12) of the Trade Marks Act provides that a mark is not registrable where it is, inter alia, contrary to law.

Accordingly, where a trade mark incorporates the South African national flag without the requisite authorisation, the applicant may face objections to registration under section 10(8) of the Trade Marks Act, as well as potential objections under section 10(12) on the basis that the use of the mark would be contrary to law. The absence of the necessary authorisation may therefore create both registration and enforcement risks for a business seeking to use the flag as part of its branding.

Practical Recommendations

Businesses should ensure that their branding complies with the applicable legislation. If you intend on using the national flag, here are some helpful tips to follow:

• Do not use the South African flag as part of your trade mark or branding unless you have obtained the necessary consent.
• Avoid using designs that are so similar to the national flag that they could be regarded as heraldic imitations.
• Consider using other elements, such as colours or cultural motifs, that do not directly imitate the flag.
• If you are uncertain whether your proposed branding requires approval, seek legal advice before investing in packaging, advertising or filing a trade mark application.

To conclude, the South African flag is a powerful symbol – but also a protected one. While widespread use might suggest that “everyone uses it,” businesses must be aware that such use remains subject to statutory control.  If you are considering incorporating the South African flag in your product packaging, marketing material or trade mark, we are available to advise on the legal requirements and assist with obtaining the necessary authorisation.

[1] https://www.nationalarchives.gov.za/node/78

[2] Section 14 of the Merchandise Marks Act 17 of 1941

[3] Section 22 of the Heraldry Act 18 of 1962

[4] Section 15 of the Merchandise Marks Act 17 of 1941

[5] Section 10(8) of the Trade Marks Act 194 of 1993, and Regulation 10(2) of the of the Trade Mark Regulations, 1995.