An investigation by TshisaLIVE has found that rapper Cassper Nyovest does not yet own the #FillUp trademark at the centre of a fight between himself and Tsonga musician Benny Mayengani.
Cassper's team revealed last week that he would be taking legal action against Mayengani for using the phrase to market his Fill-Up Giyani Stadium concert‚ which had over 25‚000 people attend. The EFF weighed in on the drama‚ labelling Cassper a "bully" and offered Benny legal protection.
However‚ the matter may never see a court room as the trademark Cassper claims Benny used without his permission has not yet been granted.
TshisaLIVE has seen the trademark records for the phrase which shows that Cassper‚ who used his full name Refiloe Maele Phoolo‚ applied for the trademark with the Companies and Intellectual Property Commission (CIPC) in November 2016.
It's at an 'advanced stage' The application was processed and "accepted with conditions." A letter was sent to Cassper in June 2017 telling him what conditions needed to be met to have the trademark granted.
"The office has issued an official action setting out the conditions for acceptance of the application. The trademark applicant needs to respond in writing to the office agreeing to the conditions in order for the application to proceed to acceptance‚" senior manager at CIPC's Head Of Trademarks Division Fleurette Coetzee explained to TshisaLIVE.
Once a response has been received the application is advertised for three months‚ giving people the chance to object. Cassper has not not responded and‚ as a result‚ the application has not been advertised.
Cassper may be able to take action in the future Copyright lawyer Adele Els told TshisaLIVE that a person who has applied for a trademark but had not yet registered it cannot prevent another person from using it. However‚ once granted‚ they can retrospectively take action against its use while the trademark status was pending.
This means that once the trademark is registered Cassper could take legal action against Benny.
"Only once the trademark has proceeded to registration do the rights come into existence and can the trademark proprietor institute infringement proceedings. It is important to point out‚ however that once registered the rights are granted retrospectively to the date of filing‚" she said.
Lawyer Graeme Gilfillian confirmed this to TshisaLIVE and said that as it stands‚ neither party could take action against each other for using the phrase.
"Presently neither could stop the other from its use - neither owns the trademark. Also‚ if the trademark has not been registered‚ a third party if not time barred can register an objective. Its unwise to make noise without registration‚" he added.
Cassper's manager Lerato 'TLee' Moiloa told TshisaLIVE he could not comment on the specifics of the dispute because it is now a legal issue.
"This is now a matter for our lawyers. We have spoken to the other side (Benny's team) and there has been no solution. We will fight because this is a brand we have worked hard to build. We are committed to this. We will allow the legal route and law to take its course."
After the furore around the phrase erupted last week‚ Cassper defended his decision.