What happened here is that Ackermans have a range of clothing called 'Must Haves'. Wicked, or what? And not only that, but they also have a trade mark registration for the expression. Shot Ackermans!

Quite something — but there's even more. Yes, apparently Woolworths have started using the expression 'must have' in relation to their clothing.

Serious, the Sunday Times article shows a Woolworths ad with a photo of a smiling woman with lovely pants alongside the line 'Must have pull up pants'.

Ackermans is gutted

This is a serious matter which has left Ackermans, like, gutted. So gutted in fact, that they sued Woolworths for trademark infringement.

Woolworths' defence was pretty predictable, in fact about as predictable as death, taxes and a whiff of cynicism in 'The Law of the Brand'.

What they said was that the expression is generic, being a contemporary cliché for what in days gone by would have been described as 'jolly nice' or 'very desirable', but now might be called 'awesome' or 'to die for'.

The expression is, of course, one of many vacuous imports from the land of baby talk, the mighty US of A. The registration was therefore, Woolworths argued, invalid.

In fact, Woolworths was like, your registration's bad Ackermans, and Ackermans was like, it's not, and Woolworths was like, it so is, and Ackermans was like, no ways.

'Amicable agreement'

The parties apparently reached an 'amicable agreement' before the matter got to court.

An amicable agreement, for the benefit of the uninitiated, is a technical legal term for an agreement which leaves each party thoroughly pissed off and which is often initiated by the lawyers just before the matter gets to court (by which time the bulk of the legal costs have been incurred) when they tell the parties that the matter could go either way, conveniently forgetting the earlier bullish predictions.

The agreement reached here was that Woolworths would stop using the expression at the end of the 2006 winter season. Well, that's a great result isn't it Ackermans!

Marginally better than an undertaking from Woolworths never to use the expression again, unless of course, they change their minds.

Will brand owners never learn?

Ho-hum, will brand owners never learn? Yes, you may think you're really cool, hip and trendy if you use the latest banal little catchphrase as a brand. In fact, you may even think you rock.

Yes, you may even hoodwink the authorities into giving you a trademark registration. But you know what? It's lame dude! It's lame because it's highly unlikely that you'll ever be able to enforce the registration against a competitor.

Why, because a brand has to be distinctive to be validly registered and a dumb phrase that everyone's using isn't likely to be distinctive, is it?

Yes, your registration may have a certain deterrent value but, contrary to most political thinking, you can't fool all of the people all of the time.

So come on guys, choose brand names and slogans which are original, words which are hectic, like 'Kulula', or words which are used out of context, like 'Amazon' for online retail But, please, not something as trite as 'Must haves'.

Hans Muhlberg is a trademark attorney at www.muhlberg.co.za