It’s giving trade mark: the registrability and enforceability of Gen Z Slang in South Africa

With the emergence of Gen Z Slang, spoken by the generation born between 1997 and 2012, you would be forgiven for feeling cheugy (read “someone who is out of date”) when the language of these “digital natives” flies right over your head (the authors included, who, without giving our ages away, sit as bookends of the Millennial Generation). As this new vocabulary continues to grow, an interesting question to ponder is whether these slang terms could be protected as trade marks?

On 2 January 2025, Accolade Intellectual Property Holdings (Pty) Limited filed applications to register SKIBIDI, RIZZ, POOKIE and SOLULU as trade marks in respect of a range of goods falling in classes 29 and 30 of the Register of Trade Marks, covering various foodstuffs. While we certainly stan (read “to be an extremely enthusiastic fan of”) entrepreneurial spirit, specifically encouraging proprietors to protect their trade marks by securing registrations, it remains to be seen how the Registrar will respond to these applications, once the marks are examined.

The purpose of a trade mark is to serve as a badge of origin, helping to distinguish a proprietor’s goods or services from those of its competitors. Trade marks are also territorial in nature, meaning that the scope of protection is limited to the country in which a mark is registered.

When seeking registration of a trade mark in South Africa, the effect of which grants a statutory monopoly to use that mark in respect of the goods or services covered by the registration, the mark must first undergo substantive examination by the Registrar’s office. As part of the process, the Registrar is empowered to make decisions in respect of trade mark applications, guided by the provisions of sections 9 and 10 of the Trade Marks Act which govern what can (and cannot) be registered.

In this instance, the applications in question will only be accepted if the examiner is of the view that these terms, SKIBIDI, RIZZ, POOKIE and SOLULU were capable of distinguishing the trade mark applicant’s goods from those of its competitors, at the time that the applications were filed (i.e. on 2 January 2025). We anticipate that the examiner will specifically consider the provisions of section 10(2) of the Trade Marks Act, which prohibits the registration of a mark which:

consists exclusively of a sign or an indication which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or other characteristics of the goods [section 10(2)(b)]; or

consists exclusively of a sign or indication which has become customary in the current language, or in the bona fide and established practices of the relevant trade [section 10(2)(c)].

According to very knowledgeable teenage sources (which our online searches have also confirmed), the term “skibidi” refers to that something is cool or bad, with the positive or negative connotation, depending entirely on the context. Good luck! The term “rizz” has been adopted to refer to someone who is charming, or who has charisma. “Pookie” is a term of endearment or reference to a close friend or romantic partner, and “solulu” should be understood to mean a solution to a problem.

The question that the examiner will, ultimately, need to consider is whether these marks are capable of distinguishing the goods covered by the applications in classes 29 and 30, which cover foodstuffs including meat, fish, poultry, coffee, tea, pastries, confectionery, chocolates and ice cream.

With the meanings of these slang terms in mind, we wonder, if a consumer was, for example, to refer to a SKIBIDI chocolate bar sold by the trade mark applicant, would this be understood as referring to the trade mark applicant’s SKIBIDI trade mark (as a badge of origin of its goods), or could this be interpreted to refer to the quality of the chocolate bar (as being a cool or tasty product)?

The Registrar’s current Guidelines on the Examination of Trade Mark Applications, which guide the process of examination, makes her view clear that laudatory words should be prohibited from registration as trade marks. In the decision of Estee Lauder Cosmetics Ltd v Registrar of Trade Marks, which concerned the registration of BEAUTIFUL as a trade mark in South Africa, it was specifically held that laudatory epithets can never be the subject of a trade mark monopoly, as this would unduly limit the free choice of language in trade to advertise and market goods. Certain laudatory words, such as “good”, “best” or “excellent” can also never acquire distinctiveness, even if there has been extensive use of these words.

To put this into perspective for “older” readers, we could ask ourselves whether the examiner would potentially allow the mark COOL to be registered as a trade mark in respect of goods in classes 29 and 30?

Even if the examiner were to find that these Gen Z slang terms currently do not have a meaning in our current language, it remains to be seen whether Accolade’s trade marks will stand the test of time. This is because these trade marks may, in future, be challenged if our language evolves to a point where these terms become customary in the current language, or in the bona fide and established practices of the food industry.

We will continue to monitor the progress of these applications closely, to see whether Accolade’s decision to register these marks was a W or a L.