If you’ve been following the FIFA World Cup in recent days, you are probably familiar (and possibily annoyed) with the vuvuzela, a plastic horn that fans in South Africa play during matches. The vuvuvela has ignited quite a controversy in the span of a little more than a week. Numerous athletes have complained that the presence of the horn is distracting and interferes with play on the field. And as Wimbeldon kicks off today, tennis fans and players can rest assured that there will be no vuvuzelas at the All England Club this year. (This strikes me as a silly ban, however, in a sport where it’s considered bad etiqutte to applaud the other side’s mistakes.)
So what possible connection is there between the vuvuzela and IP law, you ask? First, a BBC article from earlier this year tells the story of a South African church that claims that it “owns” the vuvuzela:
“We are very serious about this. Before the World Cup we are going to instruct our lawyers to stop them playing the vuvuzela at the World Cup,” says Shembe spokesman Enoch Mthembu.
“This thing [the vuvuzela] belongs to the church.”
Obviously, the church had limited success in keeping the vuvuzela out of the World Cup. But a larger question remains: could someone really “own” the vuvuzela?
Patent law protects a variety of inventions, provided that the invention is novel, useful, and nonobvious. The inventor of a particular model of vuvuzela could receive a patent, so long as these elements are met. This grant of patent rights would not preclude others from making and receiving patent protection for different variations of plastic horns incorporating additonal features.
Patent issues aside, what about trademark rights? Can someone “own” the word “vuvuzela”? Interestingly, it appears that there was a trademark application for VUVUZELA, used in connection with “Musical instruments, namely, plastic trumpets. This application was filed Masicendane Sports CC, a South African corporation. There does not appear to be an analysis in the form of an Office Action as to whether the proposed mark “VUVUZELA” was “merely descriptive” of plastic trumpets. The application was, however, abandoned for failure to file a Statement of Use.
While the IP issues surruounding the vuvuzela may be unclear, one thing is certain– that buzzing sound you hear at World Cup matches isn’t going away anytime soon.