Back Ground of the Law
In these days, it is in our usual venture to see many Ethiopian names on the bottles of Coca Cola thanks to the fanciful marketing strategy of Coca Cola Company. Coca Cola used this strategy to promote its product or I can say to instigate its customers, hence each name affixed on each bottle is believed to have a power to call an individual, whose name is affixed thereon, to the market. As it is described in some Medias, the company has used around 200 names, which are familiar to Ethiopia, to adopt this marketing campaign.
Despite of my full appreciation of this marketing strategy, I tend to see the act of the company in the eyes of the law just to lay down some legal remarks. The theme of my discussion will focus on the dictation of the law towards "The Right to Own Name and The Right to Use Name". The specific law that deals with the issue we have at hand is our Civil Code which is fully titled as Civil Code of The Empire of Ethiopia Proclamation No. 165 of 1960. It is the first section of the Code that deals with the attribution of personality with specific provisions vested to regulate issues embarking from the birth and/or conception until the death of a natural person. Under this section, the law has laid a specific chapter that deals with names of a natural person pertaining to the acquisition and usage of a name.
When we tend to the first point of our discussion, i.e. "the right to own name", we will find out sub-Article 1 of Article 32 of the Civil Code which puts the principle towards the right of a natural person to "own name" by stating as follows;
"Every individual has a family name, one or more first name and a patronymic."
Off course, some aspect of the above provision seems futile hence neither of family name nor patronymic name is in use in Ethiopia and in my view, this shall be forsaken from the law hence it has remained as the footprint of the influence of the western legal system mainly that of French. In going back to the theme of my discussion, the above provision apparently entitle every individual to own one or more first name. This usually gives a right to every born child to have first name at the mere fact of his/her delivery. One may also pause a question whether this right can be extended to a merely conceived child or not? Though the law has no clear stipulation to this effect, we may argue on the possible answers pursuant to Article 2 and 4 of the Civil Code which are laid to deal with the rights of merely conceived child and viability of a child respectively. Accordingly, we may say that a merely conceived child may have a right to have first name if his/her interest requires so, save to the need of the viability of the child pursuant to Article 4 of the Civil Code. This stand may also be rebutted on the ground of Article 7 of the Civil Code which is titled as proof of identity and it may seems to be absurd to proof one’s identity by the sole declaration of the his/her name without having his/her physical existence.
The other issue that is twined with the right to "own name" is the dictation of the law as to the need of designation of a name on administrative document. Both as a matter of fact and in reference to sub-Article 2 of Article 32, we can infer that sub Article 1 of the same Article is not only a permissive one but also a mandatory provision. We can infer this from the reading of Sub Article 2 of Article 32 which reads as;
"He shall be designated in administrative documents by his family name followed by his first names and by his patronymic."
In looking to the above provision one can understand that having a name is not only a right but it is also an obligation hence the law requires the registration of the name before an administrative body irrespective of the will of the individual. Though it is undeniable that the above provision is the one among the unenforceable provisions of the Civil Code, we can conclude that the law has entitled every individual to "own name" and also obliged the same to designate his/her name on administrative document for the sake of proofing the identity of a natural person.
The law Vis-a-Vis Coca Cola
If we have confirmed once, from the reading of the relevant provisions of the law, that everyone has the right to "own name", the second point that leads us to the question of the legitimacy of Coca Cola Company is individuals’ right towards their name. It is clear that a name, either family or first name, has immediate effect to establish the "legal personality" of the individual before the law. Proof of identity mostly begins where the name leads. Beside this, the law also stated some demarcations on the usage of one’s name.
Let us see the law through the following inquires. Do you think that the law has such strict concern to determine the manner and scope of using individual’s name? Or is the law reluctant to prohibit unlimited usage of a name either in commercial undertakings or in any representations? These questions will bring the topic of this literature in to the scene of Coca Cola’s current advertising technique against the ruling of the law.
The law, from Article 44-46 of the civil code, imposes three restrictions on the usage of a name, namely restriction towards any agreement relating to a name, and prohibitions on abuse and usurpation of a name. The first restriction of the law under Article 44 of the civil code prohibits any contractual transaction to be made in relation to a name. Article 45 of the code lays the second restriction on a person not to use his/her name in the exercise of an activity connected with his/her calling may not have the object or the effect of causing a prejudice, by means of harmful confusion, to the credit or reputation of a third person. This provision has much more concern to protect the interest of third party by limiting the extent of using one’s own name against any damage that might be inflicted on the credit or reputation of such third party that has connection with the specified name in one or another way.
The third restriction of the law and the main concern of this article is the issue of usurpation of a name. It is Article 46 of the Civil Code that regulates the issue of usurpation of a name and the full text of this Article reads as follows;
Art. 46 Usurpation of a name
1. Whosoever bears a name may resist the usurpation of such name by a third person whenever such usurpation causes or is likely to cause a material or moral damage.
2. After the death of a person or if a person is not in a position to manifest his will, the same right appertains to each of his descendants and to his spouse, even where they themselves do not bear such name.
3. Damages for moral prejudice may be awarded to the person demanding them if the usurpation of the name does not ceases immediately, when such cessation has been demanded.
As it is apparently perceived from sub-Article 1 of the above Article, a natural person will have the right to object an act of usurpation of his/her name if such usurpation causes or is likely to cause a material or moral damage. The main question that comes out of the above sub-Article is what does constitute usurpation of a name? Does the act of Coca Cola amounts to usurpation in strict sense of the law? Is every commercial usage of a name amounts to usurpation?
Here, before going through the above issues, I would like to remind the difference that exists between the English and Amharic version of sub-Article 1 of the above Article. The Amharic version seems sympathetic to protect family name only unlike to the English one which refers a name in general. But it seems illogical to give the legal protection only to family name by excluding either first name or patronymic name, and we can also justify the prevalence of the English version from the cumulative reading of the two sub-Articles of the same Articles with the generic stipulation of their title, which reads as "በሌላው ስም ያለ አግባብ ስለ መገልገል".
Having the above remark, it will be crucial to see the legal essence of usurpation in order to scrutinize the act of Coca Cola in the eyes of the law. However, the law doesn’t define what usurpation is directly. Rather it provides the two qualifying parameters, namely material and/or moral damage. Thus, in the strict sense of the law, every usage of a name that causes or likely to cause either of a material or moral damage will amounts to usurpation of a name. If this is so, we have to scrutinize whether or not putting one’s name on the bottle of Coca Cola would cause either a material or moral damage on the person bearing that name. For instance, let us say that Mr. ‘Kenenisa’ has objected Coca Cola on the ground of material damage that he has sustained in consequence of such usage of Coca Cola. He may argue that, he had been paid a potential amount of remuneration if Coca Cola would have requested his consent.
We can also induce the above assertion from the writing of Sigmund Freud which states that ‘A man’s name is a principal component of his personality, perhaps even a portion of his soul.’ In this sense the name ‘Kenenisa’ may tell us much more about the personality of that individual than the literary meaning that the word has. This personality, in turn, may cause or instigate others to drink Coca Cola that bears the name ‘Kenenisa’ and by this fact the Company may raise its profit. Off course, we may raise a number of questions from this hypothetical case. Does the name used and the profit gained have a real cause and effect relationship to establish cause of action? Can all persons bearing the name ‘kenenisa’ have the same claim? If that is so, What if some individuals bearing the name ‘Kenenisa’ have consented and others have not? How can we manage the issue of cause of action?
In my view, the issue of suing Coca Cola for its usage of names has to be seen in two dimensions. The first one is the purpose of the law. In my view, the law is not there to prohibit the mere fixation of one’s name either on the bottle of some product or elsewhere within the market, but to protect personality of a natural person through his/her name. Thus, every usage of a name shall be seen in line with the attribution of personality of a natural person. Meaning, we have to ask whether or not such usage of a name has some adverse effect on the personality of a natural person.
The second point of reference shall be the association of the personality of the person bearing the name and the purpose for which the name is utilized. The legitimacy of the usage of one’s name will depend on the social, cultural and religious background of that person. Every usage of a name can’t be contestable in general. Rather, it shall be seen case by case in line with the nature of the usage and the characteristics of the person whose name is utilized.
In conclusion, I would like to let the question open for discussion in which we will have more widened practical and legal reflections.