LEGAL CORNER

Protecting your brand and image

Many people have trademarked their names and brands

In Summary

• With the growth of technology and the rise of social media, individuals have harnessed the power of their personal brands

Teenage climate activist Greta Thunberg during the opening of the 74 United Nations General Assembly in New York
Teenage climate activist Greta Thunberg during the opening of the 74 United Nations General Assembly in New York
Image: COURTESY

World-renowned climate activist Greta Thunberg, 17, is taking a dive into the intellectual property field. Really, but not really. Thunberg will be joining the list of celebrities and personalities who have tried or trademarked their names and brands.

She recently announced she would be applying for a trademark for her name, "Skolstrejk för klimatet" (School Strike for Climate), the phrase written on the sign that jump-started her activism, and the Fridays For Future (#FridaysForFuture) climate crisis movement she created. This would be in an effort to combat their constant commercial use by various organisations and entities without her consent.

By filing for a trademark, something Thunberg said she had no prior interest in doing, she intends to protect her movement and its activities. With her trademark, she would be able to take the necessary legal action against people or corporations who try to use her name and brand for causes that don't align with what the movement stands for.

"Fridays For Future is a global movement founded by me," she wrote. "It belongs to anyone taking part in it, above all the young people. It can — and must — not be used for individual or commercial purposes."

UNDERSTANDING THE RIGHTS

‘Image (personality) rights’ is a set of intellectual property rights that refers to the right of an individual to own and control the commercial value of their image, likeness, persona or identity. With the growth of technology and the rise of social media, individuals have harnessed the power of their personal brands. Celebrities, media personalities and even sports personalities have generated significant earnings both from leveraging their own brand as elite athletes and from sponsorship deals with various brand owners. Typically, using one’s brand, name or likeness commercially without their consent amounts to a violation of these rights.

Further, personalities can register themselves as trademarks; not only their own name but also nicknames, poses, slogans, signatures or other insignia for which they are well known for. Usain Bolt’s ‘Lightning Bolt’ pose and his ‘to di world’ slogan are registered trademarks. With regards to trademarking of names, Beyoncé has, on the other hand, reserved the exclusive right — with respect to baby goods — for the usage of Blue Ivory Carter, her daughter’s name.

Even without a registered trademark, however, celebrity athletes have “image (or personality) rights” to prevent the unauthorised use of their images, names, likeness or other personal attributes. Like any other hard-earned ‘property’, intellectual property rights seeks to ensure the owner of the ‘trademark’ or brand can protect the integrity and value of his brand as well as profit justly from it.

THE CASE FOR KENYA

In the early days of August 2019, Victor Wanyama sued Kenyan oil manufacturer Menengai Oil Refineries, asking for compensation over the use of his image in what he has referred to as a ‘commercial advertisement’; one that he did not consent to.

The football star accused the manufacturer of publishing his image alongside the company’s trademarked logo on June 21, two days before Kenya’s national football team played their first match at the African Cup of Nations. He claims the wording in the caption together with the use of his image created the impression he was the official brand ambassador of the oil manufacturer, which he is not.

The said image appeared on social media and was accompanied by the message “if you believe it, you can do it. We at Menengai should like to wish our boys all the best in the #AfricaCupOfNations. From #TheHeartOfGoodLiving. We believe in you."

Wanyama is seeking from the court a declaration that the oil company’s actions contravened his image and personality rights and that the image publication constitutes a marketing advertisement, which he is entitled to damages as a result. Due to the matter being currently in court, not much can be said about it at this moment. However, Wanyama’s case is likely to set an important precedent in this area as it tackles the aspect of brand and image rights in social media.

While the issue of intellectual property rights is fairly new in Kenya, Wanyama’s case will not be the first within its borders touching on image and brand rights. In 2014, there was the case of Kitosiosio Ole Kutuk vs Safaricom, where the telecommunications juggernaut was sued for using without consent the image of Kitosiosio Ole Kutuk, a Maasai moran, on its GSM Sim Cards. There was also the interesting case of Suzie Wokabi vs Microsoft, where Wokabi alleged that Microsoft East Africa had misappropriated images of her and her son’s hands and feet and used them on advertisements for Microsoft products without her consent.

Celebrities and personalities who have established a brand and a reputable image should be keen to protect their brands at all costs. Not only would this ensure how their fans and followers perceive them, but it would also ensure they get part if not all the earnings their brands generate.