BATTLE FOR THE UMKHONTO WE SIZWE TRADEMARK

In South Africa, the legal framework for trademark protection is established under the Trademarks Act 194 of 1993. This Act provides organisations with a mechanism to register and protect their trademarks, crucial for safeguarding their identity, heritage, and the public’s perception.

The ANC has hauled the newly-formed MK Party to the Durban High Court, challenging their use of the name uMkhonto we Sizwe and the acronym MK. The ANC has argued that both names are intrinsically associated with the ANC and the unlawful appropriation of the uMkhonto we Sizwe name by a splinter group could potentially mislead the public and dilute the ANC’s brand identity, particularly with an election looming.

In a commercial sense, The Trademarks Act offers a preventative remedy through registration, which provides exclusive rights to use the trademark thereby preventing unauthorised use. In the case of the ANC, not only does it claim to have registered the trademark, but there are also cultural and societal ramifications that can alter the narrative and perception of historical movements and their legacies.

Representing the MK party, advocate Dali Mpofu argued the matter is about the “political contestation” and exercising of “political rights” set out in Section 19 of the Constitution and that the ANC’s trademark case is anchored on “voter confusion”.

The fact that both parties agree the name confusion is likely to lead to voter confusion brings the key constitutional issue of the public’s ability to exercise their fundamental democratic right of choosing a government.

With just weeks to go before the crucial national elections, the Durban High Court will have to unravel the legalities of the conundrum. Whether it’s a straightforward judgment or not, the party aggrieved by the outcome will more than likely lodge an appeal. It not just voter confusion one has to worry about, but also the looming possibility that the legal wranglings could delay the election itself.