SA brands getting IP right: Bathu Shoes

by Kim Pietersen. Bathu, a proudly South African sneaker brand with its roots in 2015, is not only making the right moves to become a beloved household name, but is also taking all the right steps to build a legacy that lasts. This is how Bathu is getting its intellectual property (IP) right and, in doing so, building a sustainable and financially viable business with the potential to last.

Start with trade mark protection

During the creation stage of any brand or business, it is important to protect your IP, which starts with considering which trade marks you intend to commercialise and taking steps to protect them. Before filing a trade mark in South Africa, it is prudent to examine the Register of Trade Marks for prior trade marks that could pose an obstacle to the registration or use of your mark. It is a good idea, further, to instruct a trade mark attorney to conduct such a search on your behalf.

Once you are satisfied that your trade mark is likely to proceed to registration, go ahead and file – because the earlier you do so, the better. Once registered, a trade mark is valid for 10 years. The founder of Bathu, Theo Baloyi, has already filed over 10 Bathu-related trade marks in South Africa, in the name of his trading company, Bathu Swag (Pty) Ltd. As a result, Bathu Swag is entitled to prevent a third party from using the BATHU trade mark in South Africa in relation to shoes (and related goods) – as well as the use of a confusingly similar mark, like Batu. The outcome? Baloyi is able to make money from the sale of shoes and from commercialising the Bathu brand, which yields sustainability and is a method for safeguarding exclusivity.

Patent, design and other IP protection

Apart from trade mark protection, you should also consider whether patent, design and other IP protection (like copyright) might be possible. Simply put, while a patent protects an invention (in other words, the principle underlying a process or a product), a registered design protects the physical form of an article of manufacture (essentially, how something looks). What is key is that you should keep your invention or design secret, in order to avoid destroying its novelty and, given the complexity of this area of law, you should consult an attorney for the rest.

As far as copyright protection is concerned, SA law affords an author automatic copyright protection if, by way of example, that author independently creates an original artistic work – like a logo. Registration is not necessary and copyright owners can save their money to fight off infringers. In the context of Bathu, the popular logo depicted below can be safeguarded by copyright protection, in which case copying it in any circumstance would constitute copyright infringement.

Crafting an online presence

Online sales and an online presence are considered critical ingredients in most recipes for success. Once your traditional IP is protected, secure social media accounts for your main trade marks. This will not only ensure that you have an online presence that you can leverage to grow your business, but also aid in preventing third-party brand impersonation online. Bathu has arguably captured consumers’ attention by creating a sneaker brand that ticks all the checkboxes of Western sneaker brands, while it presents an African-centric narrative. This narrative is pushed vigorously via online marketing, which has consumers engaging with Bathu or Baloyi on a number of major social media platforms – reaching a combined 870,000-plus followers. This translates into sales on Bathu Swag’s online marketplace, while feeding into its brick-and-mortar stores, of which there are over 15 across South Africa.

Bathu’s story is more than a story of sneakers. It’s a story of an African business with its IP sorted.

Main image credit: @bathu_sa.

Kim Pietersen is an associate attorney in the Trade Mark Department at Spoor & Fisher Cape Town. She has a BA (Performing Arts) and an LLB from Stellenbosch University, and is an Attorney of the High Court of South Africa. This article was overseen by Eben van Wyk, a Partner at Spoor & Fisher South Africa. *This article is merely to report, not to advise.

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