Copy It, Share It, Sell It?

Many people assume that as long as they are not selling anything, using a famous brand’s logo is harmless. Print it on a T-shirt, give a few away to friends, post a photo online? Surely that is just personal use.

In South Africa, the answer is less straightforward than it seems. Section 34(1) of the Trade Marks Act 194 of 1993 catches unauthorised use only “in the course of trade”, so genuinely private use generally falls outside its reach. However, the Act does not say where private use ends and trade begins, and that line can be crossed without any money changing hands.

This article examines where South African trade mark law draws that line, how conduct that begins as personal can quickly take on a commercial character, and what is at stake if it does.

A practical example illustrates this point.

The Branded T-Shirt: A Case Study

Consider a scenario:

An individual admires a well-known artist or sports team but cannot purchase genuine merchandise in South Africa. The individual prints the logo onto a plain T-shirt at home to wear out and about in his day-to-day life. Has trade mark infringement occurred?

Under section 34(1) of the Trade Marks Act, infringement requires use “in the course of trade”. If the T-shirt is printed solely for personal wear and is never sold or commercially exploited, there is a strong argument that section 34(1) infringement does not apply.

Now change the facts:

Ten T-shirts are printed and sold to friends or listed online. The trade mark is now being used in the course of trade in relation to goods, which clearly triggers infringement under section 34(1). If the brand is well known in South Africa, the risk is greater still. Section 34(1)(c) protects well-known registered trade marks against use that takes unfair advantage of, or is detrimental to, the trade mark’s distinctive character or repute, even for entirely different goods and even without consumer confusion. A homemade T-shirt bearing a luxury logo, sold cheaply, could readily be found detrimental to the trade mark’s reputation.

When Does Personal Become Commercial?

The Supreme Court of Appeal confirmed in National Brands Limited v Cape Cookies CC [2023] ZASCA 93 that section 34(1)(c) protects more than a trade mark’s function as a badge of origin and extends to safeguard the reputation, advertising value and selling power of a well-known trade mark. Proof of actual detriment is not required; the likelihood of detriment is enough, provided the facts support that inference.

The transition from personal to commercial activity can be subtle, and courts may take a broad view of what constitutes use “in the course of trade”. Consider these variations:

Gifting: Branded T-shirts are printed and given to friends at no charge. While no money changes hands, if this is done at scale, it may be argued that the use is in the course of trade, depriving the brand owner of its rightful revenue and brand reputation.

Social media: A branded T-shirt is printed, and photographs are posted on a social media account where products are promoted, or advertising revenue is earned. The commercial character of the platform may be taken as use for trade mark purposes.

Once-off sale: A single T-shirt is printed, worn, and later sold second-hand. This sits at the boundary: a single, isolated transaction may not constitute use “in the course of trade” for trade mark purposes, but regularity or scale could tip the balance.

Beyond Civil Liability: The Counterfeit Goods Act

The risks do not end with civil infringement. The Counterfeit Goods Act 37 of 1997 can criminalise manufacturing, applying, possessing, selling or otherwise dealing in goods bearing a trade mark, or a colourable imitation thereof, without authority where the goods are calculated to be confused with, or taken as, the protected goods. In Yossi Barel v Popular Trading CC [2025] ZASCA 94, the Supreme Court of Appeal confirmed that counterfeiting requires intentional deception, something more than ordinary trade mark infringement. Depending on the facts, selling homemade branded goods to the public could meet that threshold.

Even where trade mark law may appear to offer a safe harbour for genuinely private, non-trade use, the boundaries are not always clear. The line between personal use and use “in the course of trade” is fact-dependent, and conduct that begins as personal can easily cross into trade mark infringement as circumstances change.

What You Stand to Lose

Section 34(3) of the Trade Marks Act gives the proprietor a powerful menu of remedies, at the proprietor’s option: an interdict; removal of the infringing mark and delivery up of goods where removal is not possible; damages; or a reasonable royalty instead of damages. Even small-scale, informal activity can therefore carry significant legal consequences.

Key points to bear in mind: while genuine personal use may fall outside the scope of trade mark infringement, the line between private use and use in the course of trade is fact-specific and easily crossed; conduct that begins as personal can quickly acquire a commercial character; and gifting, posting, or reselling branded items requires caution, as scale, promotional context, online activity, and regularity may constitute use in the course of trade.

Whether conduct is lawful depends on what was done and how it was done, not simply on whether profit was sought.

If you are considering copying, sharing or selling branded material and are unsure where the line falls, please contact Eversheds Sutherland. We would be happy to help you navigate it.