Don’t let fraudsters steal your brand.

In South Africa we have laws that are supposed to protect us against false and misleading advertising and persons trading off our hard work and financial investment in our brands. The reality is no one really has our back, writes Cindy Engels, A.Shak’s managing director. 

The Consumer Protection Act protects the consumer but not the supplier when a retailer advertises a premium product at a ridiculous price, and in fact does not even stock the premium brand but an inferior product. In a competitive environment like the Hardware and DIY industry where market share is everything, this false advertising creates a snowball effect of category managers frantically phoning sales managers about why this retailer can sell your product for less than they can buy it directly from the manufacturer.  

We are currently dealing with this exact scenario, and it is not the first time that this retailer has put our brand with an image of our product on his flyer, which is distributed in and around Soweto and advertised on social media. When confronted the owner of the store claims that the fault lies with the printers of the pamphlet, and he has no control over the images which they use. Our lawyers are also at a loss as to how we deal with this situation. I investigated lodging a complaint with the newly formed Advertising Regulatory Board (the old ASA is in liquidation) only to discover that as a company and not an individual we would be required to pay a filing fee of R28 750 and if it went to an appeal a further fee of R69 000.  

legal law infringement property trademark words on a board

The question now is, what do we do to protect our business? According to the advertising laws of South Africa if you can prove the facts are correct you can use them in an advert. We will be placing an advertisement in The Sowetan newspaper shortly warning residents of how they are being misled and to not expect to be able to buy a 5l Plasterkey at R99.95. The hardware retailer in question’s advertising boasts a lot of branded products, but a walk around his store proves that many of the products that they stock are ‘no name’ brands.  

It is probably a good idea for other hardware suppliers to also look around and see if they are misrepresented as well.  

Trademark infringement is another major problem.  This is a constant battle, and our legal bill monthly would support the average South African family. We are constantly having to send out cease and desist letters to protect our registered trademarks against companies who have no idea they are breaking the law. Just because you have a polymer-based liquid in a white bucket that you believe is the same as the A.Shak  product, does not mean you can call it Plasterkey. Also, changing the spelling doesn’t let you get away with it either. We know our product is top quality, and some might want to trade off our success, but we will find them too. 

Competition is healthy and we embrace it as it keeps the industry honest and interesting. To those who piggyback on others success, I suggest you build your own brand and your own niche in the market, with hard work and dedication. 

The views in this article are those of the author and not necessarily those of the publication. 

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