Does the law need to change colours?

There’s a wine called Chameleon (whether or not it’s called that because it changes colour isn’t clear – ‘you want to exchange that bottle of white for a red sir, there’s really no need, just give it a few days’). Please just pretend you’ve heard of it. There’s another wine called Lovane. You don’t have to pretend you’ve heard of that, just imagine you see it somewhere. Do you say to your companion:

• Lovane, how nice, they’re reverting to those nice French-sounding names like L’Ormarins, before you know it we’ll be back to those nice Dutch-sounding names like Twee Jonge Gezellen, that experiment with silly names like Tall Horse and Fat Bastard really was tedious, or
• Lovane, I wonder if that’s connected with that Chameleon wine I know so well.

Option one is old fart territory. Option two is what the makers of Chameleon contended in a recent court case. Why? Well, because the isiXhosa word for chameleon is ‘ulovane’, something the makers of Lovane were apparently well aware of, the wine having been named Lovane because the estate is full of chameleons. So there will be confusion, argued the makers of Chameleon, because 17.5% of the SA population speaks isiXhosa as a first language. And, pre-empting the objection that only honkies drink wine, we have had black people visit our estate. Ja swart mense, kan jy dit glo!

Get a life said Western Cape judge, Lee Bozalek! Yes South Africa’s multilingual character is relevant when deciding confusing similarity, but Lovane will be seen as an isiEnglish word (Low Vane), or perhaps an isiFrench word (Loo Varn), but without any chameleon imagery no-one will see a linkage with chameleons. So basically Lovane can be regarded as a coined word. And there have been no cases of actual confusion (never necessary but always useful), and no expert evidence that Xhosa speakers would link Lovane with ‘ulovane’. And, those who speak isiXhosa make up ‘a relatively small proportion of the total population.' Really!

This decision is likely to be controversial - expect much angry clicking in the Eastern Cape, expect much talk of colonial attitudes, expect the SA government to summon the ambassador from the Republic of the Western Cape, expect JM to enter the fray. And expect huge sighs of relief from lawyers. Because when lawyers have to search trade marks, they’re always faced with the dilemma of whether or not to consider translations. Which, in a country with 11 official languages, is no joke!