Telkom's threats are bare faced

Telkom has just threatened to sue a disgruntled client for the staggering sum of R5 million unless he immediately pulls down his website www.hellkom.co.za. The hapless victim has been using this site together with other consumers fed up with Telkom's services to mount well-aimed attacks against the corporation.

In doing so, the utility giant with a virtual monopoly on telecommunications in the country alleges that the owner of this website Gregg Stirton is violating its trademarks by parodying its well-known "Telkom" name and keypad logo.

And for interest's sake, this is not the first time that the giant has flexed its muscles and warned a minor gadly, albeit one that is an irritant, that he stood to pay millions in damages for daring to sully its reputation in public. In June this year, Telkom forced another dissatisfied customer with dire consequences unless he surrendered his two websites; www.telkomsucks.co.za and www.mywirelesssucks.co.za. Fearing a battle for which he almost certainly could not even afford the services of the cheapest lawyer in town, the poor complainant reluctantly give in to Telkom's bullying.

The current website has been established in response to the poor level of services offered by Telkom through its services including its internet access products such as ISDN, ASDN and Mywireless. It's basically a forum for grievances by clients dissatisfied with the low-level of performance by these particular products as well as Telkom's apparent lack of interest to redress their grievances.

Whereas Telkom has a right to protect its name, trademarks and reputation, what needs to be considered here is whether the parodying of its name and logo amounts to their infringement. In actual fact, the question becomes one of weighing just how far parody as a form of criticism is protected as a free expression right in our country.

Parody, a term of Greek origin, is well established not just in South Africa but across the world. It is a form of 'poetic licence' which allows a person to imitate something in a humorous and exaggerated way. That's why cartoonists and comedians caricature just about everything in our society without inviting retribution since they mirror all that is supposed to be good or bad about ourselves.

It is almost unthinkable for instance that Telkom would contemplate the kind of action it is threatening was its name and logo to be caricatured by some of the popular cartoonists in our daily press. As a form of fair comment therefore, parody and criticism enjoy higher levels of protection than say speech that claims to be based on facts, since these must be proven.

Telkom's claim that the use of the words "Hellkom" and "Telscum" as well as the use of certain graphics and logos on the "Hellkom" website amounts to the infringement of a registered trade mark is spurious. Such infringement can only occur where an individual or individuals use a registered mark to deceive or cause confusion and also for a pecuniary benefit. This is not the case with the site under dispute.

It is amusing that the corporation in its no nonsense letter of demand to the Hellkom owner has said that the domain name telkomsucks.Ocatch.com and hellkom, telskum and monopoly-dotcom among others, "are confusingly similar to …[the] TELKOM trade mark". One is left wondering what could be more dissimilar in form. But obviously Telkom is so blinded by fury that anything and everything that smells fleetingly of an attack against its reputation seems to it like an evil smudge that must be cleared without hesitation.

Perhaps Telkom is unaware of a similar matter that concerned its local counterpart in the travelling business South African Airways (SAA) only two years ago. In this case, a disgruntled passenger who flew on a South African Airways (SAA) flight from London to Cape Town got angered by what he alleged to be poor the service offered to him during the flight. After making repeated complaints and getting no joy from the airline, he set up a site www.neverflysaa.com, which he registered in the United States . SAA 's official website is www.flysaa.com.

The airline then made a formal complaint to the internet domain names National Arbitration Forum based in the US alleging trademark infringement.  However and in an interesting twist, the arbitrator ruled that though the person probably had no rights or legitimate interests in the name and also despite the fact that the website was set up in bad faith as the person appeared to have behaved badly, the domain name was not confusingly similar to that of the SAA website. The airline could do little else but swallow its pride and perhaps listen much more keenly when another client complains about its services in the future.

With the widespread use of the internet, it is now becoming increasingly accepted that a person may legitimately register a domain name using an established trademark in association with additional words such as "hell" "sucks", or "never" and not be in violation of the trademark. In doing so however, the person must use such website as a forum for genuine complaints against the activities of another, its products or services. The accepted wisdom is that being a disgruntled consumer or otherwise having been dissatisfied with the service or product offered by the corporation, the person who establishes such a site has a legitimate interest in the use of its name.

It is worrying that the last few years have been characterised by a notable trend in South Africa where big business is increasingly resorting to legal threats to stifle criticism against their activities. For instance in 2002, the National Lottery Company "Uthingo" threatened to sue an individual who had put up a site parodying it as "National Robbery" and criticising the Lotto for making astronomical profits while not benefiting the poor. In the same year, South African Breweries (SAB), which today is the world's second largest brewer, sued a small Cape Town T-shirt maker for parodying its "Black Label" beer brand with the words, "Black Labour, White Guilt".

Though SAB won the first round of the court case, the T-shirt maker successfully appealed against the judgment and the matter is now pending before the Supreme Court of Appeal. There was also the spirited but failed attempt by General Motors (GM)- formerly Delta, - to stamp down on the scathing criticism launched by one of its unhappy customers who labeled his Isuzu bakkie "The Worst 4 X 4, By Far" and displayed it in public for all to see.  GM argued that these words were defamatory but the court overruled it pointing out instead that this was fair comment rather than a malicious attack.

The Hellkom website is merely one way in which individuals are exercising their right to criticise the activities of Telkom. Criticism and parody that is not actuated by malice constitutes fair comment, which is an essential component of the right to freedom of expression. Such criticism enjoys constitutional protection no matter how exaggerated it may be as long as it is honest, relevant and it is carried out for non-commercial purposes.

Rather than make such facile threats, Telkom must strive to improve on its products and services and attend to the grievances of the public. In addition, the corporation must bear in mind that the right to freedom of expression is not just about ideas that are favourable or well received, it also includes ideas that shock or offend. In any event, Telkom is a public institution and consumers must be given a certain amount of leeway to take the corporation to task over the way in which it provides telecommunications services in the country.

Simon Kimani

Head: Anti-Censorship Programme

Article published as "Telkom threatens to sue Hellkom", Sowetan Sunday World, 22/08/2004