South Africa - Red Cross Emblem Abusers Finally Brought to Heel
For many years, the South African Trade Marks Office has regularly seen attempts by abusers to utilise the Red Cross Emblem in trade marks. With the enactment of the South African Red Cross Society and Legal Protection of Certain Emblems Act 10 of 2007, Parliament has sought to eliminate this abuse. The commencement date for this legislation is 16 August 2007, and the Act also repeals Government Notice No. 937 of 30 August 1915 (published in Government Gazette No. 678 of 3 September 1915).
Firstly, the Act gives statutory recognition to the South African Red Cross Society as the national Red Cross Society of the Republic of South Africa, as well as recognising its objects and functions. The Red Cross Society has worked closely with the Department of Health on various programmes, disasters and emergencies. South Africa had undertaken to promote and encourage development of the South African Red Cross. Section 8 of the Act facilitates co-operation between Government, in the person of the Minister of Health, and the Red Cross Society. Section 8 goes on to state that the Minister must ensure strict compliance with any prescription contained in, or made by virtue of the Geneva Conventions regarding the use of the Red Cross Emblem and the Red Crescent Emblem. The Act also requires the Minister to take appropriate steps to prevent any misuse of the Red Crescent or Red Cross, in particular by disseminating the prescriptions as widely as possible among organs of state and the general public. Likewise, the Society must co-operate with the Minister of Health and Minister of Defence in the performance of their functions and must inform the respective ministers of any misuse of the Red Crescent or Red Cross Emblem which may come to its knowledge. Further, whenever necessary or whenever requested by the relevant minister, the Red Cross Society must assist in criminal, civil or administrative proceedings relating to the use or misuse of an emblem.
The statutory protection of the Red Cross and Red Crescent Emblem of the Red Cross Society provide the legislation with its teeth. In terms of section 9(1), use of the Red Crescent and Red Cross Emblem is limited to certain circumstances, namely:
as a sign that persons or equipment fall under the protection of the Geneva Conventions;
to show that persons or equipment are connected to the International Red Cross and Red Crescent Movement;
with the authorisation of the Minister of Health or the Minister of Defence in respect of personnel and equipment of the National Defence Force; or
as otherwise determined in the Geneva Conventions.
The Act also contains what is known as a savings provision, in which the use of the emblem is not considered an offence. This provision reads as follows:
any person who uses the emblem for a continuous period of not less than one year prior to the commencement of this Act, which use constitutes an offence in terms of Section 9, may apply to the Minister for authorisation to use the emblem;
an applicant contemplated above, may continue using the emblem until the Minister has considered the application;
the Minister may, on the recommendation of the society, approve the application if the continued use would not constitute a misuse of the emblem within the ambit of the objects of the Act and the Geneva conventions;
approval of the application may be made subject to such conditions regarding the use of the emblem as may be appropriate in the circumstances;
any application contemplated above must be made within six months of the commencement of this act.
Anyone making unauthorised use of the Red Cross or Red Crescent Emblem, or an imitation thereof, is guilty of an offence, unless one of the grounds in section 9(1) of the Act is found to be applicable. If someone is found guilty of an offence, a fine and/or a maximum prison sentence of five years may be handed down. In terms of the Act, directors and members of juristic persons may also be held accountable for the acts committed by the juristic person in question.
Lastly, the State may search and seize any article or thing used in the commission of the offence mentioned above.
A broad cross-section of the South African body politic has welcomed the Act and the manner in which it facilitates further co-operation and interaction between Government and the Red Cross Society.