(FXI/IFEX) – FXI has condemned South African telecommunications giant Telkom’s threats of legal action against the owners and operators of the website http://www.hellkom.co.za. Telkom alleges that the site is an infringement of its registered trademark and, therefore, a violation of the country’s trademark and intellectual property law. The corporation has demanded that the website be […]
(FXI/IFEX) – FXI has condemned South African telecommunications giant Telkom’s threats of legal action against the owners and operators of the website http://www.hellkom.co.za. Telkom alleges that the site is an infringement of its registered trademark and, therefore, a violation of the country’s trademark and intellectual property law. The corporation has demanded that the website be shut down immediately or it will launch legal action for damages of 5 million rand (approx. US$800,000).
The website was established in response to the poor level of Telkom’s services, including its Internet access products. It serves as a forum to air grievances among clients dissatisfied with these products’ low-level of performance as well as Telkom’s apparent lack of response to their concerns.
Telkom claims that the use of the words “Hellkom” and “Telscum”, as well as the use of certain graphics and logos on the “Hellkom” website, amounts to the infringement of a registered trademark as prohibited by the Trade Marks Act. FXI calls this claim spurious, adding that trademark infringement only occurs where an individual or individuals use a registered trademark to deceive or cause confusion for pecuniary benefit. This is not the case with the disputed site.
The organisation pointed out that that there is increasing recognition across the world that a person may legitimately register a domain name using another established trademark in association with additional words such as “hell”, “sucks” or “never” without violating intellectual property law. In doing so, however, the person must use such a website as a forum for genuine complaints against the activities of another site, its products or services. The accepted wisdom is that a consumer who is dissatisfied with the service or product offered by the complainant, and who establishes such a site, has a legitimate interest in the use of such a name.
In addition, FXI notes that such names may be found not to be deceptive or confusingly similar to the registered trademark, as happened in the case of a disgruntled passenger who flew on South African Airways (SAA) in 2001 from London to Cape Town. Angry at the allegedly poor service during the flight, he set up a website, www.neverflysaa.com, to air his grievances. SAA’s official website is www.flysaa.com. Though a tribunal in the United States, which heard the complaint for trademark infringement in 2002, found that the person probably had no rights or legitimate interests in the name, and also that the registration was in bad faith as he appeared to have behaved badly, it held that the domain name was not confusingly similar to that of SAA.
In the last few years, FXI has become alarmed at the rising number of threats made by large corporations to stifle criticism or parody against them. The institute has handled complaints relating to censorship actions by South Africa’s National Lottery Company “Uthingo”, South African Breweries Ltd. (in the Black Label beer case) and, more recently, Telkom in the matter of “Telkomsucks” and “Mywirelesssucks”.
The organisation says it stands fully behind the Hellkom website, as well as its contests, as it is a forum for individuals to exercise their right to criticise or parody Telkom’s activities. It observes that criticism and parody that is not actuated by malice constitutes fair comment, which is an essential component of the right to freedom of expression. Such criticism enjoys constitutional protection no matter how exaggerated it may be, as long as it is honest, relevant and carried out for non-commercial purposes.
FXI advises that, rather than making such threats, Telkom must strive to improve its products and services and attend to the public’s grievances, in addition to bearing in mind that the right to freedom of expression embodies the very essence of democracy. Furthermore, the organisation notes that Telkom is a public institution and members of the public must be given a certain amount of leeway to take the corporation to task over the way it provides telecommunications services.
