In his play “Romeo and Juliet” William Shakespeare advanced the proposition through his character Juliet: “What’s in a name? That which we call a rose by any other name would smell as sweet.” What he was saying was that the flower, the rose, had intrinsic value, and, no matter what name it was given, that intrinsic value would be unaffected. The actual name, per se, was thus irrelevant and had little or no value. That proposition may have had some merit in the seventeenth century and in the specific context in which it was advanced, but it does not have universal application at the present time.
Names in the form of trade marks or the appellations of people, institutions, places, countries and the like have great economic, and other, value in modern society. Names can be symbolic of the characteristics and natures of the subject matter to which they are applied. Above all, they perform the function of embodying or encapsulating the reputation of that subject matter or the public esteem in which it is held.
In trade mark law the reputation attaching to a particular product, as symbolised by the trade mark applied to it and by which it is identified, can give rise to proprietary rights in that trade mark. A trade mark can be an extremely valuable item of property and an asset in the business in which it is used. One thinks of trade marks such as GOOGLE, MICROSOFT, APPLE, COCA COLA, MCDONALDS, and GIVENCHY, to name but a few. These trade marks have been ascribed values of many millions of US dollars. A cola-flavoured beverage which may be identical in all respects to the cola-flavoured beverage called COCA COLA is likely to have limited market appeal or value compared to the COCA COLA product. The reason for this is the value that the trade mark or brand name COCA COLA enjoys through its repute. Unlike Shakespeare’s rose, the name by which it is called is not irrelevant or valueless. The contrary is true. Having acquired a good reputation, the trade mark in fact becomes the primary commercial commodity rather than the goods to which it is applied. The roles cast by Shakespeare in effect become reversed and the actual goods become less important, and relatively of lesser value. In order to address this modern situation, Shakespeare’s proposition should be adapted to read, something along the lines of: “That which we describe as a perfume, if called by the name GIVENCHY, would smell as sweet.”
The same considerations apply to the names of other subject matter, and, in particular, people. An individual can develop a reputation which is symbolised or encapsulated in his or her name. A certain value, including, but not limited to a monetary value, can be ascribed to an individual’s name, usually by virtue of public awareness of that name combined with noteworthy performances or achievements. One thinks of entertainment personalities and sports persons. Names like GARY PLAYER, ROGER FEDERER, and DAVID BECKHAM, have become household words. They even become trade marks and are applied to goods as brand names or by way of endorsements. Such names can become vis a vis the goods that they identify what COCA COLA has become to soft drinks and APPLE to computers and smart phones. Here the names applied to the goods also become the primary sought-after commodity rather than the goods in question.
A good example of the name of an individual that has acquired a substantial reputation and become exceptionally valuable in monetary terms, virtually instantaneously, is that of the athlete Wayde Van Niekerk. By virtue of his superlative performance in winning the gold medal in the 400 metres athletics track event at the Olympic Games in Rio de Janeiro, and breaking the world record for that event, he has become famous. He has reportedly entered into an endorsement/sponsorship arrangement in respect of his name worth $ 30 million per year for life with the owners of the NIKE trade mark for sports goods. In a sense it took less than three-quarters of a minute to catapult his name to lucrative fame.
The law acknowledges that a person’s name and the reputation that it enjoys can be a substantial asset and it provides mechanisms for its protection. The individual has the right, firstly, to preserve his/her good name and, secondly, to control its use for commercial purposes. This is achieved by, respectively, personality rights under the common law and trade mark rights under trade mark law, both statutory and common law.
A name or a mark as a valuable asset is, generally, not something that comes about by happenstance. The name must have a good reputation, no matter how that has come about. In the case of Wayde Van Niekerk it came about suddenly, through winning an important race in record time. On the other hand, that race was preceded by long hours of training and by dedication aimed at achieving optimum performance. Wayde Van Niekerk is exceptional. In general, a reputation in a name is generated over a lengthy period by dint of a blend of painstaking work and effort together with talent and public appeal.
The policy of the law is to grant recognition and just deserts to a name that has a reputation, and to nurture and protect it as a fundamental right. The counterpoint to this is that the public at large has an obligation to respect that right and to honour it. This obligation is, however, subject to the holder of the name maintaining that good reputation.
A good reputation is a very powerful, but fragile, asset. It is vulnerable to being terminated at short notice. It is a paradox that the stronger the asset is, the more fragile it can be. Phrases such as “how the mighty have fallen” and “the tallest trees catch the most wind” spring to mind. The best and strongest reputation can be destroyed in and instant, even quicker than the three-quarters of a minute that it took for Wayde Van Niekerk’s instantaneous reputation to be created. The world-renowned paraplegic athlete Oscar Pistorious’ enviable and lucrative reputation was destroyed as the result of a single incident – in the time that it took to fire four gunshots; probably in as many seconds. The enviable reputation of Maria Sharapova, the famous tennis player, was severely, if not terminally, damaged overnight when she was found to have been using banned performance-enhancing substances. Other examples that come to mind are the fates that befell the cyclist Lance Armstrong and the golfer Tiger Woods, both of whose reputations were destroyed or severely dented by untoward incidents. In all these instances lucrative sponsorship/endorsement arrangements were terminated as a result of the reputation-destroying incidents that occurred. Famous trade marks can suffer similar fates, although may be somewhat more robust than individual names. The disastrous oil spill in the Gulf of Mexico suffered by BP oil and the fraudulent gas emission claims made by the manufacturers of famous-brand motor cars are examples.
In view of the cataclysmic damage or prejudice that can be caused to famous trade marks and name holders following on from potentially reputation-destroying incidents, it is important that the relevant facts pertaining to those incidents should be properly established before the incidents are publicised. For instance, to take the example of Maria Sharapova, suppose that the presence of the banned substance in her blood stream had subsequently been shown to have come about as a result of a bitter competitor slipping the banned substance surreptitiously into her drink at a cocktail party; it would have been grossly unfair and unjust to her for her reputation to have been sullied as a result of finding the presence of the substance in her blood stream in these circumstances.
What actually causes the tarnishment in this situation is the publicity given by the media to the potentially damage-causing incident. The media, thus, has, or ought to have, an enormous responsibility not to shout the incident from the rooftops unless and until all the relevant facts have been obtained. As mentioned above, the world at large, especially the media, have an obligation to honour and respect the rights of the holder of a reputation in a name or mark. That obligation is abrogated by giving prominence to untested stories or distorted facts. On the other hand, the media has the function of keeping the public informed. These two duties must be weighed up against each other. The balanced and honourable approach would be to report in a sober manner that allegations have been made about an incident and to add that the facts have not been established, and that it would be premature to reach any conclusions or form any judgment about the incident until certainty has been achieved. Unfortunately, past experience has shown that this approach is not the norm and the media frequently opts to sensationalise these matters to extreme extents, which, in turn, can spawn public hysteria. When this occurs, even the subsequent emergence of the true facts which show the name holder to be blameless can have little effect. The damage to the reputation has been done and cannot be undone.
The law is mindful of the vulnerability of trade marks and names to unjust tarnishment and its damaging consequences, and provides victims with remedies to obviate and compensate invasions of the rights of holders in this respect. Trade mark infringement and defamation claims, respectively, are available to aggrieved holders. However, these remedies are, generally, far too slow moving in the current digital age, and by the time that they can take effect the real damage has already been irretrievably done. What these remedies demonstrate, however, is that it is public policy that reputations of names and marks should be safeguarded against unfair and unjust tarnishment. The media and the public at large should be mindful of this public policy and must govern their conduct accordingly. This is the honourable attitude and the norm that citizens are expected to observe. Due respect for personal rights is enshrined in our Constitution.
A drama along the lines related above is currently being enacted in the case of Judge Mabel Jansen. It has been claimed that she has made various offensive remarks of a racialist nature. She, on the other hand, says that the remarks in question have been taken out of context and that, when viewed in their proper context, are not offensive as claimed. The matter has been referred to the Judicial Services Commission (JSC) for a thorough investigation. The true facts from which reasonable conclusions can be drawn ought to emerge from the deliberations of the JSC. This is the correct and proper course to follow. In the meantime, however, the media and members of the public have tried her before the court of public opinion and, without the benefit of being possessed of the complete and true facts, have found her guilty, and have hung drawn and quartered her. Her reputation is in tatters, whatever the outcome of the proceedings before the JSC might be. Her name, which has been worthy in legal circles, has been destroyed. This is grossly unfair and unjust, and is a blight on the conduct of those who inform public opinion. It has, moreover, led to her being vilified and to her and members of her family being physically threatened. What if she is found to be blameless? “A plague on both your houses!”, to quote Shakespeare, once again, from “Romeo and Juliet”.
An interesting aspect of this matter is the role played by her accuser, an activist in the cause of combatting rape of women and children. This role has facilitated this matter becoming an extreme example of reputation assassination. She appears to feel that Judge Jansen has sinned and should be made to answer for it. She is fully entitled to her point of view and even to raise the matter formally in the appropriate circles. By doing this she will have done sufficient to discharge her duty, as she perceives it. But has it been necessary, or even justified, for her to whip up the issue into a media feeding frenzy, particularly at this premature stage, as she has done? She has persistently kept the public controversy on this issue going over a period of several months. It is difficult to reconcile this approach with the acceptable norms that we have referred to above and with the cause of combatting rape that she espouses, and which Judge Jansen was supporting.
The position is aptly summed up by the immortal bard in “Othello” as follows: “But he that filches from me my good name robs me of that which not enriches him, and makes me poorer indeed.”
So, you may ask: “What’s in a name?” A whole lot!
Emeritus Professor and Research Fellow
