A quick note about the Cell C rebranding and ™

The Cell C rebranding has sparked a furious debate about the merits of the new logo as well as Cell C's campaign involving Trevor Noah. In critiquing the new logo a number of people, myself included for some inexplicable reason, confused the significance of the ™ symbol with the ® symbol and have referred to the Cell C logo as being a registered trade mark. This is not accurate and this was borne out by news that the Cell C logo's registration has been provisionally refused.

It is worth exploring what a trade mark is and what the distinction is between these two symbols. A trade mark is a mark used in relation to goods or services which distinguishes those goods and services from those sold or rendered by any other person. This is one of the reasons why a trade mark that is confusingly similar to another trade mark is often a trade mark infringement. Trade marks need to be distinctive to be effective although trade marks are also registered in different classes. This could mean that the same or a similar trade mark can be used for goods or services in very different industries or classifications.

Trade marks need not be registered and this is where the confusion came in with this story. The ™ symbol indicates that a particular mark is being used as a trade mark. It doesn't mean that the trade mark has the protections afforded to registered trade marks which use the symbol ® to indicate registration.

What Cell C is doing is using an unregistered trade mark pending its application to register its trade mark. If registered, it will likely then apply the ® symbol to its logo. Cell C still faces a number of challenges to its trade mark's registration including the grounds I mentioned in my previous post as well as provisions of the Trade Mark Regulations which specifically refer to the use of the © symbol as a basis of refusal of the application.

It isn't surprising that Cell C is fighting for its new branding. It has reportedly spent a fortune rebranding its stores and, in all likelihood, paying its designers and lawyers too. It is a substantial investment which can't simply be discarded and while its logo design choice may be questionable, it seems to be stuck with it for now unless its registration is rejected completely. In that case Cell C will have to decide whether to use its new trade mark as an unregistered trade mark and make the most of its investment or change its branding and try again.

Cell C and its new logo: trade marks and copyright

Cell C recently revealed its new logo at a press conference in Johannesburg. According to its press release:

At a press conference in Johannesburg yesterday, Cell C which for the past nine years has been associated with a red logo and spotted “C”, revealed a refreshing new black and white logo with the “C” in the latter part of Cell C, placed within a solid circle.

The new corporate identity, according to Cell C CEO, Lars P Reichelt, reflects the company’s vision of understanding its customers’ way of life better than anybody else and tailoring solutions around them to enhance lifestyles and improve livelihoods.

The new brand identity also consists of a six-colour bar which represents the colours of the South African flag as a symbol that Cell C cares about South Africa, and South Africa only. Cell C intends to cater to all customers and not just those within specific LSMs.

Looking at the new logo you would be forgiven for being a little confused. The circled "C" bears an uncanny resemblance to the symbol we have become pretty familiar with for another reason. That symbol, depicted below, is the universal symbol for copyright:

The Cell C logo appears to be a registered is being used as a trade mark and its choice to include the copyright logo could have some interesting consequences for the trade mark itself. While I don't profess to be an expert in trade marks, using such a well known symbol in its logo may open the door to challenges to the trade mark's registration where reliance is placed on the circled "C" itself on a couple grounds including:

• Cell C has no claim to own the circled "C" symbol;
• the circled "C" symbol is a well known symbol internationally in a very different context;
• the circled "C" symbol is already in widespread use in South Africa, including by Cell C's own competitors, in copyright notices; or
• the symbol may even cause confusion to a degree.

The new logo, as a whole, may be registrable as a trade mark but the prevalence of the copyright symbol may have the effect of diluting the trade mark to the point where it has far less value as a trade mark than if Cell C came up with an original logo that didn't incorporate such a well known symbol.

Another problem with the new logo is that Cell C's competitors may immediately be infringing the trade mark where their copyright notices are prominent relative to their promotional materials on their websites and elsewhere. MTN and Vodacom have copyright notices with the copyright symbol on their websites and have done so for some time now:

and

Cell C has probably opened itself up to a number of challenges both to its trade mark registration and to the brand itself largely due to its decision to use this well known symbol.

Another concern is the impact this logo choice may have on general awareness of the copyright symbol and its meaning generally speaking. The new Cell C logo dilutes the value of the copyright symbol as a distinctive symbol for copyright and content protection generally, particularly where there is relatively little understanding on the value of respecting copyright and content owners' rights. This may seem like a fairly abstract concern but I have found that while most people I speak to when I present on copyright issues recognise the copyright symbol, many people have an appreciation for what that symbol stands for and Cell C's decision to incorporate this symbol could only hamper copyright education efforts despite creating a very interesting case study in trade mark selection and registration.

Update: I was taking another look at the Cell C website and noticed this representation of the logo at the bottom of the page:

This representation suggests that Cell C regards the circled "C" as a prominent feature of its trade mark and it even suggests that Cell C has trademarked the copyright symbol itself. This seems to be somewhat reckless and invites a challenge in some form or another. That challenge may not be a legal challenge, at least not initially, but it would well be a reputational or brand-related challenge down the line.

On that note be sure to read Mandy de Waal's article about Cell C's campaign featuring Trevor Noah. There are a growing number of questions being asked about the campaign itself.

Update 2: Cell C just doesn't seem to be getting a break with its logo choice. I just noticed an article in BizCommunity about the similarities between the Cell C logo and Athletics South Africa's logo. These similarities may not affect Cell C's ability to register its logo as a trade mark if the trade marks are registered in different classes but the resemblance is striking.