Dale van Reenen | Associate | Spoor & Fisher | mail me |
with oversight from Jeremy Speres | Partner | Spoor & Fisher | mail me |
Excitement will abound on 11 June 2026 when the South Africa national soccer team takes on the Mexico national football team in the highly anticipated 2026 FIFA World Cup opener in Mexico City. This match will serve as a rematch of the opening game of the 2010 FIFA World Cup. It also marks South Africa’s return to the World Cup stage after failing to qualify for the previous three tournaments.
Like the fan fever that followed the South Africa national rugby union team’s victory at the 2024 Rugby World Cup, South Africans can expect a wave of green and yellow sportswear across the country in support of Bafana Bafana. Of course, South Africans become deeply patriotic when national teams succeed on the field. “No DNA, just RSA”, as the saying goes.
With the FOMO that accompanies these events, businesses can also expect increased patriotic marketing activity. Consequently, traders looking to “back the boys” must carefully navigate the legal and regulatory framework surrounding patriotic marketing practices.
Misleading patriotic marketing in terms of the ARB
Patriotic marketing is a strategy that uses symbols of national pride, identity, and cultural heritage to build consumer loyalty.
Businesses that want to use patriotic marketing strategies should avoid making false claims about their products. For example, traders should not claim that goods originate locally when they do not. The Advertising Regulatory Board (ARB) considers this dishonest and misleading.
The Code of Advertising Practice states that advertisements may not abuse consumer trust or exploit consumers’ lack of experience or knowledge. In addition, the Code states that advertisements should not contain statements or visuals that could mislead consumers.
On 14 April 2025, the ARB handed down a decision against a local advertiser known as Cape Flair. The company operated a website advertising clothing with multiple references to South Africa and Cape Town.
The landing page featured images of the South African flag inside a heart shape alongside the words “Cape Town, SA”. The website also displayed a well-known Cape Town beach with phrases such as “Cape Town’s signature style, tailored for South Africa” and “South African Fashion, from the heart of Cape Town”.
These patriotic marketing tactics misled consumers by creating the false impression that the products were locally made. However, the advertiser had sourced the clothing from a global distribution chain. A return address linked to China ultimately exposed the issue.
The ARB found the advertisements dishonest and misleading. In its ruling, the board highlighted the growing consumer support for local brands. It also stressed the need to prevent deceptive advertising practices.
Proudly South African (more than just a statement)
Traders often describe their products as “proudly South African” with genuine intentions. However, this slogan and its accompanying logo are registered trade marks in South Africa.
The Proudly South African organisation owns these marks. Consequently, businesses may not use them without permission. The Merchandise Marks Act also prohibits improper use of these marks because the law protects consumers from deception in trade.
To use PROUDLY SOUTH AFRICAN marks in patriotic marketing material, businesses must first become members of the Proudly South African organisation.
Membership requires the following:
- At least 50% of production costs for locally made goods must occur in South Africa.
- Imported goods must undergo substantial transformation in South Africa.
- The goods or services must meet high-quality standards.
- Businesses must comply with fair labour practices and legislation.
- Businesses must adhere to proper environmental standards.
Non-members who use these protected marks may face liability for trade mark infringement. Furthermore, unauthorised use constitutes a criminal offence under the Merchandise Marks Act.
Use of national symbols on packaging
The Merchandise Marks Act also prohibits traders from using trade marks containing the national flag, armorial bearings or other heraldic emblems without authorisation. In addition, the law prohibits unauthorised use of the national flag, coat of arms seal and symbols of State patronage in trade marks.
Businesses that wish to use these symbols on product packaging must obtain authorisation from the Minister of Trade, Industry and Competition. The Minister generally requires businesses to preserve the design and integrity of these symbols in their correct proportions.
The Registrar of Trade Marks may also request proof of authorisation before accepting a trade mark application that incorporates a national symbol. If accepted, the Registrar will require applicants to disclaim exclusive rights to those symbols. This means businesses cannot claim monopolies over the use of these national symbols or prevent others from using them.
Beyond national symbols, businesses will likely need to disclaim exclusive rights to common cultural phrases such as LOCAL IS LEKKER or RAINBOW NATION. Alternatively, the Trade Mark Registrar may reject these applications because the phrases are too common to function as distinctive trade marks in patriotic marketing campaigns.
The Consumer Protection Act
Like the Merchandise Marks Act, the Consumer Protection Act protects consumers against false, misleading or deceptive representations in product marketing. These protections include false claims relating to product qualities, standards, grades, styles, sponsorships or approvals.
Businesses that falsely market products as South African-made may also contravene the Consumer Protection Act. As a result, affected consumers may approach the High Court or the National Consumer Tribunal for relief.
Unlawful competition
Misrepresentations about the nature of goods may also amount to unlawful competition. Courts will often consider whether deceptive marketing tactics attracted customers under the false belief that the products possessed qualities they did not actually have.
If traders deceptively use patriotic marketing to convince consumers that products are locally made, affected consumers may seek relief from the High Court.
Businesses that want to avoid High Court litigation should comply fully with the legal and regulatory requirements governing proper patriotic marketing. After all, nothing kills the gees faster than a good old-fashioned cease-and-desist letter.
