Last week Cassper Nyovest was in the middle of a back and forth on Twitter, pertaining his famous hashtag “#FillUp.” According to report the rapper was planning on taking legal action against Tsonga musician Benny Mayengani for using the “#FillUp” phrase. Following that report, the rapper received a huge amount of backlash from tweeps, and it provokes a “moral vs ownership” debates on Twitter.
One camp is being led by EFF CIC Julius Malema and the other by Cassper’s industry friends and his nation of Tsibipians.
According to TshisaLive, Cassper Nyovest doesn’t own the #FillUp trademark.
TshisaLIVE has seen the trademark records for the phrase, which states that Cassper using 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”, while 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.
Due to a response from Cassper not being received, the application has not been advertised where Benny or anyone else would have a chance to object the registration.
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 can take any 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 also 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 but said that the law should take its course.
“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.”