What is a joint marketing & co-branding agreement?
Is a joint marketing & co-branding agreement enforceable in South Africa?
“38(1) Where a registered trade mark is used by a person other than the proprietor thereof with the licence of the proprietor, such use shall be deemed to be permitted use for the purposes of subsection (2). (2) The permitted use of a trade mark referred to in subsection (1) shall be deemed to be use by the proprietor and shall not be deemed to be use by a person other than the proprietor for the purposes of section 27 or for any other purpose for which such use is material under this Act or at common law.”
“4(1) An agreement between, or concerted practice by, firms ... is prohibited if it is between parties in a horizontal relationship and if— (a) it has the effect of substantially preventing, or lessening, competition in a market, unless a party ... can prove that any technological, efficiency or other pro-competitive gain resulting from it outweighs that effect; or (b) it involves any of the following restrictive horizontal practices: (i) directly or indirectly fixing a purchase or selling price or any other trading condition; (ii) dividing markets by allocating customers, suppliers, territories, or specific types of goods or services; or (iii) collusive tendering.”
When you need a Joint Marketing & Co-Branding
- When two businesses want to launch a co-branded product, service, or campaign — for example a co-branded payment card, a joint loyalty programme, a bundled offer, or an advertisement that carries both logos — and need to cross-license their trade marks for that purpose.
- When you are letting another company put your brand on its product or marketing (or putting yours on theirs) and want quality control, approval rights, and clear limits recorded so your goodwill is protected and your mark is not weakened by uncontrolled use.
- When the two brand owners are in the same or adjacent markets and need the collaboration scoped so legitimate joint marketing does not stray into price coordination, customer or territory allocation, or information sharing that would breach section 4 of the Competition Act.
- When you are entering a longer marketing partnership and need to agree upfront who owns the jointly-created materials, artwork, taglines, and any new combined logo, and what happens to all of it when the partnership ends.
What a Joint Marketing & Co-Branding should contain
Cross trade-mark licence (scope and limits)
Each party grants the other a limited, revocable licence to use its named trade marks, logos, and brand assets only for the defined co-branded product, service, channel, and campaign. Specify exclusivity or non-exclusivity, territory, duration, and the exact marks covered — this is the operative grant and engages section 38 of the Trade Marks Act.
Quality control and brand-usage approval
Because under section 38 a licensee’s use is deemed to be the proprietor’s own use, each owner must retain real control over how its mark appears. Build in brand guidelines, sign-off rights on every co-branded asset, minimum quality standards for the joint product, and audit or inspection rights — an uncontrolled or “bare” licence can damage and even endanger the mark.
IP ownership of jointly created materials
State who owns the artwork, taglines, combined lock-up logo, photography, and other materials created for the collaboration. The default is that each party keeps its own pre-existing IP, while newly created joint material is either jointly owned or assigned to one party with a licence back — set this expressly, as South African copyright vests in the author/commissioning party unless assigned in writing.
Competition-law guardrails (section 4 carve-out)
Where the parties compete, expressly limit the collaboration to the marketing purpose and prohibit using it to fix prices, allocate customers or territories, or exchange competitively sensitive information (current pricing, costs, margins, strategy). A clean-team / information-firewall protocol keeps the deal inside section 4(1) and away from the per se prohibitions in section 4(1)(b).
Roles, contributions and cost / revenue split
Record what each party brings (brand, channels, budget, product, data), who runs which marketing activities, how costs are shared, and how any joint revenue, leads, or royalties are split and reconciled. Clarity here prevents the most common co-branding disputes over spend and returns.
Reputation, conduct and morality-clause protection
Allow either party to suspend or terminate the co-branding if the other’s conduct, a product recall, or reputational damage threatens its brand. Co-branding ties your reputation to your partner’s, so include warranties on lawful conduct, compliance, and the right to pull the joint mark quickly if the partner brand becomes toxic.
Term, termination and unwind / phase-out
Set the duration, renewal, and termination triggers, and — critically — the run-off: how long co-branded stock and live ads may remain, the deadline to cease all use of the other’s marks, return or destruction of brand assets, and the fate of jointly created materials. Each licence must clearly end so neither party trades off the other’s brand afterwards.
Data sharing, POPIA and consumer-law compliance
If the campaign shares customer or marketing databases, address lawful processing and a responsible-party arrangement under POPIA, plus the Consumer Protection Act rules on the joint offer and any direct marketing. Co-branded promotions and competitions must comply with both, and the agreement should allocate that compliance responsibility.
Co-branding agreement vs joint venture agreement in South Africa
| Feature | Co-branding / joint marketing agreement | Joint venture agreement |
|---|---|---|
| Core purpose | Combine two brands on a product, service or campaign | Pursue a shared business venture together |
| Legal vehicle | Contract only — usually no new entity | Often a new jointly-owned company or partnership |
| Trade marks | Each party cross-licenses its own marks | Marks may be contributed to or owned by the JV |
| Profit / loss | Costs and campaign revenue shared per contract | Shareholders share JV profits and losses |
| Governing document | Co-branding / marketing agreement | JV / shareholders’ agreement + MOI |
| Competition-law focus | Section 4 (collaboration between competitors) | Section 4 plus merger control if a JV is notifiable |
Common South African pitfalls
- Granting a “bare” licence with no quality control: under section 38 of the Trade Marks Act a licensee’s use is deemed to be the proprietor’s own use, so letting a partner use your mark without approval rights, brand standards, and audit rights can damage your goodwill and leave the mark vulnerable. Always retain real, exercisable control over how your brand is used.
- Using the collaboration to coordinate as competitors: if the two brand owners compete, slipping price coordination, customer or territory allocation, or sensitive-information sharing into a “marketing” deal can breach section 4 of the Competition Act — and section 4(1)(b) practices (price-fixing, market division, collusive tendering) are prohibited per se with no efficiency defence and penalties of up to 10% of turnover.
- Leaving ownership of joint materials unstated: artwork, taglines, and a new combined logo created for the campaign are not automatically yours. South African copyright vests in the author or commissioning party unless assigned in writing, so silence creates a dispute over who may keep using the joint creative after the deal ends.
- No clean exit or phase-out: without a clear deadline to stop using the other’s marks and to run off co-branded stock and live advertising, one party can keep trading off the other’s brand after termination — a frequent and avoidable source of post-deal litigation.
- Ignoring POPIA and the Consumer Protection Act on joint campaigns: sharing customer databases for a co-branded promotion without a lawful basis and a responsible-party arrangement breaches POPIA, and co-branded competitions or offers must meet Consumer Protection Act requirements. The agreement should pin down who carries each compliance duty.
Frequently asked questions
Is a joint marketing and co-branding agreement legally enforceable in South Africa?
Yes. A co-branding agreement is enforceable in South Africa as an ordinary commercial contract — there is no special co-branding statute. Because each party licenses its trade marks to the other, it is governed by the Trade Marks Act 194 of 1993, and where the parties compete it must also respect section 4 of the Competition Act 89 of 1998.
Do we transfer ownership of our trade marks when we co-brand?
No. In a co-branding agreement each party keeps ownership of its own trade marks and merely grants the other a limited licence to use them for the joint product or campaign. Under section 38 of the Trade Marks Act that licensed use is deemed to be the proprietor’s own use, which is exactly why quality control over how the mark is used is essential.
Why does quality control matter so much in a co-branding deal?
Because section 38(2) of the Trade Marks Act deems a licensee’s permitted use to be use by the proprietor, the goodwill — and any harm — from your partner’s use accrues to your mark. A licence with no real quality control or approval rights (a “bare” licence) can erode and even endanger your trade mark, so the agreement must give each owner enforceable control over how its brand appears.
Can we co-brand with a competitor under South African competition law?
You can, but carefully. A genuine joint marketing collaboration is lawful, yet if the two parties are in a horizontal relationship, section 4 of the Competition Act applies. The deal must be confined to the marketing purpose and must not be used to fix prices, allocate customers or territories, or share competitively sensitive information — those section 4(1)(b) practices are prohibited per se with no efficiency defence.
Who owns the logo, artwork, and taglines created for the co-branded campaign?
Only whoever the agreement says. Each party normally keeps its own pre-existing brand assets, but newly created joint material — a combined logo, campaign artwork, or taglines — needs an express ownership clause. Under South African copyright law those rights vest in the author or commissioning party unless assigned in writing, so the agreement should assign or jointly own them and license use after the deal ends.
What happens to the brands when the co-branding agreement ends?
Each licence must clearly terminate. A well-drafted agreement sets a phase-out: a deadline to stop using the other party’s marks, a run-off period for existing co-branded stock and live advertising, return or destruction of brand assets, and the fate of jointly created materials — so neither party keeps trading off the other’s brand once the partnership is over.
Does POPIA apply if we share customer data for a co-branded campaign?
Yes. If a co-branded promotion involves sharing or jointly using customer or marketing databases, the Protection of Personal Information Act applies. You need a lawful basis to process the data and usually a responsible-party arrangement between the brands, and any direct marketing must meet POPIA and Consumer Protection Act rules. The agreement should allocate who carries each compliance duty.
Do I need a written co-branding agreement?
It is strongly advisable. A co-branding relationship can start on a handshake, but a written agreement fixes the cross trade-mark licence, quality control, ownership of joint materials, cost and revenue split, competition-law guardrails, and the exit — and lets your attorney confirm the trade-mark and Competition Act positions before a brand is damaged or a complaint arises.
Sources & authority
- Trade Marks Act 194 of 1993, s 38 (permitted use and registered users; s 38(3) registration of registered users)
- Trade Marks Act 194 of 1993 — LawLibrary consolidated version
- Competition Act 89 of 1998, s 4 (restrictive horizontal practices; s 4(1)(b) per se prohibitions)
- Competition Act 89 of 1998 — LawLibrary consolidated version
This guide is general information, not legal advice. It reflects the law as at June 2026.