Tsa Gae (Pty) Limited (All Kasi) and Ludo Kemoeng are first and second applicants respectively and are in dispute with registered owner, Tumisang Keitseng, over the logo. In his founding affidavit, Kemoeng said he is the designer of the Zebra head encompassed in the emblem. He said he is a graphic designer with skills that enabled him to design the Zebra's head.
"I designed this head through my artistic craftsmanship by mapping half a head of a zebra and mirroring it to have a complete zebra head. Naturally a zebra's stripes are asymmetrical. My design therefore deviates from the norm," Kemoeng stated in his affidavit. He said in 2003, Keitseng approached him to allow her to use the zebra mark head. "I allowed her in good faith to use the zebra head to market and sell T-shirts and bandanas ahead of Zebras football matches.
Neither at that time nor at any other time has Keitseng expressed her desire to register the mark and exploit the design exclusively," he added. He further said he designed the zebra head to instill national pride and solidarity amongst supporters of the national team since at the time the Zebras did not have a mascot. He said since it is used as a symbol of solidarity, the zebra head became synonymous with the Zebras and Tsa Gae. "The design was never intended to be exploited for commercial purposes and Tsa Gae and I never derived any commercial benefit from the use of the head other than mentioned later in this affidavit," he added.
He said by virtue of designing the zebra head, he acquired the intellectual property rights in respect thereof, rendering him the owner of the zebra head. He said the respondent's mark contains the zebra head popularised by the applicants through the use in Zebras shirts. "It is no coincidence that the zebra head in the respondent's mark is objectively similar to the one in the Zebras shirt and there is clear causal connection between the two. The similarities exist because I was responsible for designing the mark registered by the respondent. Therefore, my copyrights have been gravely infringed," he said.
However, in her response, Keitseng denied Kemoeng's claims about approaching him to allow her to use the zebra mark. She said
the applicant has been designing for her company, Lobebe since 2001, which artworks were created by her. She also said the mark was designed mainly for tourism purposes and to market the country. She said it was not created to market Zebras t-shirts nor its supporters.
"The mark was not popularised by the applicants through use in the Zebras shirts. It is in fact the applicants who infringed my copyright as they copied my mark, modified it and reproduced a similar mark," she said. During his submissions before the registrar, Kemoeng's representative, Eddie Bayford, said they were aware that Keitseng had registered the mark and followed the right procedure in doing so. He also said he was aware that Keitseng asked for permission from the Office of the President (OP) with regard to the use of the word Botswana and was allowed. He said the only dispute is over the use of the zebra mark. He wondered whether it is correct for a person, other than the creator, to register the mark.
He said the mark could only be registered if it were almost similar to the one that is well known and argued that the mark was well known before registration. He added that it could only be registered if it was original. He said the Industrial Property Act "is silent on the issue of originality and therefore the copyright law should apply".However, Tengo Rubadiri, for Keitseng, said if the representatives of the first and the second applicant claim that the mark has been used for a long time, why was it not registered. He said the rights of the respondent who has followed the right procedures in registering the mark should not be tempered with and the case should be dismissed.
Meanwhile, Rubadiri also inquired about the demands they made for the surrender of merchandise branded with the mark for destruction by the registrar. He was advised to approach the courts. Makepe said he could not make an order in that regard. He however said while the case is ongoing, Keitseng remains the registered owner of the trademark.He said after listening to the submissions by both parties, it would take tremendous research not only to read the submissions, but also to make a conclusion.