IFEX - News from the international freedom of expression community
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ALERT - SOUTH AFRICA

12 August 2004

FXI fully supports use of parody against telecommunications corporation

SOURCE: Freedom of Expression Institute (FXI), Johannesburg

(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.

For further information, contact FXI at P.O. Box 30668, Braamfontein, 2017,
Johannesburg (Street Address: 21st floor, Sable Centre, 41 De Korte Street,
Braamfontein, 2001, Johannesburg), South Africa, tel: +27 83 733 2675, +27
11 403 8403/4, fax: +27 11 403 8309, e-mail: [email protected], Internet:
http://fxi.org.za

The information contained in this alert is the sole responsibility of FXI.
In citing this material for broadcast or publication, please credit FXI.
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