Few events capture the level of public attention, commercial investment and national engagement that major international rugby fixtures enjoy in South Africa where rugby has become one of the country's most enduring instruments of nation building, capable of uniting millions of South Africans across racial, cultural and economic divides in moments of shared pride. From the 1995 Rugby World Cup to the 2023 World Cup triumphs, the sport has repeatedly demonstrated that it is more than a game, it is a powerful expression of national identity and social cohesion. That unique cultural significance also makes rugby one of South Africa's most valuable commercial assets.
The upcoming 2026 Rugby's Greatest Rivalry Tour is expected to generate significant economic activity, attract capacity crowds and create substantial opportunities for businesses seeking to capitalise on the increased public interest surrounding the event. However, unlike ordinary sporting events, the commercial exploitation of this tour is subject to a specialised statutory regime under the Merchandise Marks Act 17 of 1941 (“the MMA”), which restricts who may commercially benefit from the publicity generated by the tour.
Through the declaration of a protected event and the designation of specific words, logos and emblems as prohibited marks, the MMA provides the organisers of the event, and the official sponsors who pay the organisers for the right to capitalise on the custom brought in by the spectators, in a substantial way.
Sections 15(1) and 15A of the MMA establish two distinct statutory mechanisms to protect commercial interests. Section 15(1) empowers the relevant Minister, following such investigation as considered appropriate, to prohibit, either absolutely or subject to conditions, the use of any mark, word, letter or figure or any arrangement or combination thereof, in connection with any trade, business, profession, occupation or event, or in connection with a trade mark, mark or trade description applied to goods. A prohibition under section 15(1) may be permanent (for example the prohibition of World Wild Life Fund, WWF and the Panda device)[1] or limited to a specified period or purpose (for example the Netball World Cup Cape Town 2023 Logo)[2]. The declaration of marks as prohibited marks under section 15(1) arises frequently as a result of the obligations imposed on the government by the provisions of Article 6ter of the Paris Convention.[3]
Section 15A serves a different objective by combating ambush marketing. It authorises the relevant Minister, after investigation and consultation, to designate a qualifying sporting, recreational or entertainment event as a "protected event" for a defined period. During the protection period, no person may use a trade mark in a manner calculated to obtain special promotional benefit from the event without the organiser's authorisation. The prohibition extends beyond direct references to the protected marks, and also include visual representations, audible reproductions and promotional activities that create an association with, or allude to, the protected event.
Unlike section 15(1), which protects specified marks themselves, section 15A regulates the promotional use of a proprietor’s own trade mark to prevent unauthorised commercial exploitation of the publicity surrounding protected events. The combined effect of these provisions is that, during the protected period, it is a criminal offence to use a protected mark in a manner likely to achieve publicity for a business or derive promotional benefit from the event, without prior authorisation from the organisers.
The upcoming rugby tour has been declared a protected event for the period 7 August 2026 to 12 September 2026.[4] While this designation as a protected event demonstrates the continued effectiveness of South Africa's anti-ambush marketing regime, it also raises the question to what extent should private commercial interests be permitted to monopolise marks that have acquired significant public and cultural meaning, and what obligations accompany such statutory protection?
Protected-event status is not granted solely to protect commercial rights holders. Section 15A(1)(b) of the MMA requires that the Minister must be satisfied that the event is in the public interest, and that the organisers have facilitated opportunities for small businesses, particularly those from previously disadvantaged communities. In practice, this requires organisers to implement procurement and Broad-Based Black Economic Empowerment policies that align with South Africa's broader transformation objectives, while also submitting post-event impact assessment reports to evaluate whether the economic opportunities generated by the event were meaningfully distributed among small businesses and previously disadvantaged communities.
During the upcoming protected period, a list of 41 rugby-related marks, words and emblems will enjoy protection under the MMA. These protections are by no means unusual, as similar designations have been implemented for several major sporting events hosted in South Africa, including the 2003 ICC Cricket World Cup,[5] the 2009 British & Irish Lions Tour,[6] the 2010 FIFA World Cup[7] and the 2022 Rugby World Cup Sevens.[8]
While many of the protected marks are unsurprising, as they encompass event-specific branding such as RUGBY'S GREATEST RIVALRY, the names of the participating teams and associated logos, the list also includes terms that have become deeply embedded in South African sporting culture, such as BOK, BOKKE, BOK FRIDAY and STRONGER TOGETHER. The inclusion of such terms raises an interesting tension between the protection of commercial rights and the use of expressions which have acquired significant sporting and cultural meaning.
Many of these marks are already protected through trade mark registrations, including registrations held by the South African Rugby Union (“SARU”). However, the protections afforded by the MMA extend significantly further than traditional trade mark rights. A trade mark infringement claim generally requires unauthorised use of a mark in the course of trade which is likely to cause confusion. By contrast, the provisions in the MMA are concerned with preventing businesses from taking unfair commercial advantage of the publicity surrounding the event itself, even where the conduct may not amount to traditional trade mark infringement or passing off.
The practical challenge now lies in determining where legitimate support ends and ambush marketing begins, as the notice declaring the event as protected provides little practical guidance on how businesses should navigate this distinction.
Nevertheless, the statutory regime is directed at commercial exploitation rather than genuine expressions of support. The protections are not intended to prevent members of the public from using these culturally significant terms in a personal capacity or expressing support for South African rugby. Rather, the restrictions are aimed at preventing businesses from leveraging the event's goodwill to promote their own goods or services without authorisation.
For businesses, however, the position is less straightforward. Marketing campaigns that run during the protected term will need to be carefully structured to avoid creating an unauthorised association with either the protected event or any of the designated marks. Businesses that have already developed rugby-themed promotional material may similarly need to review and, where necessary, amend or withdraw such campaigns to mitigate potential legal risk.
Therefore, the designation of Rugby's Greatest Rivalry 2026 as a protected event illustrates the increasingly delicate balance between protecting the commercial viability of major events, ensuring that major events deliver economic and social benefits, and preserving the public's ability to engage with expressions that have become deeply embedded in South Africa's culture. As future protected-event designations are considered, this balance is likely to remain a subject of ongoing legal and policy debate.
By Ashleigh Sova and Regardt van der Merwe at Von Seidels, IP law firm in Africa
