Although rapper, Cassper Nyovest, has filed a legal action against musician Benny Mayengan for using the hashtag #FillUp to promote his gig on social media, Nyovest may not have the legal grounds to do so.
This is according to Carl Van Rooyen who is a partner at Spoor and Fisher attorneys.
Speaking to 702’s Lee Kasumba, Van Rooyen stated “until it’s registered, he’s got a piece of paper that sits there with DTI. For the time being, he’s got no registered rights. So there is no way he can take Benny to court on the basis of trademark infringement.”
Nyovest (real name Refiloe Phoolo) had filed the paperwork to get rights to the phrase back in November 2016.
According to Van Rooyen, in terms of the trademark act, you only acquire rights from the date it is registered.
“For the time being, there is nothing he can do based on the fact of his pending trademark,” he added.
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Van Rooyen explained that the most that Nyovest is entitled to are damages from the artist as it is highly unlikely that his trademark will even get cleared within the next year.
The rapper also has the option to sue Benny based on the grounds of “passing off” by arguing that he has built a reputation on ‘Fill Up’ and it is associated with him. If he can convince the court that Benny’s use of ‘Fill Up’ will confuse audiences then he may have a case but Van Rooyen highly doubts that this will be a possibility.
“There’s is nothing wrong in principle, to register ‘Fill Up’ as a trademark,” said Van Rooyen.
It’s distinctive enough to warrant his claim because according to the lawyer, there is no general need for people to use the words ‘Fill Up’ when promoting a concert.
Using it as a general term in everyday life will not become a problem, it is only when it is used in a commercial sense as a brand that it becomes a problem warranting legal action.
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