The uMkhonto weSizwe Party (MKP), headed by former president Jacob Zuma, would have to change its name and logo if the ANC wins its “trademark” case against it.
The two parties squared up in the Durban high court on Wednesday.
Zuma and the ANC's secretary-general, Fikile Mbalula, were present while the matter was argued before judge Mahendra Chetty. This while supporters from both sides gathered outside the court building.
Judgment was reserved.
The ANC, in essence, argued that the use of the name “uMkhonto weSizwe” and the logo, depicting a character with a spear, was an infringement of a trademark the party held over both.
It also alleged that the MKP was “passing” itself off as being linked to the ANC, in an attempt to benefit from its struggle glory and ride on the coattails of its successes.
Asked by Chetty what the practical effect would be of any order granted in the ANC’s favour, advocate Gavin Marriott said: “The MKP would not be entitled to use their logo, or any trademark that looks like a warrior. They would not be entitled to use the name MK.”
He said the party would remain registered but would have to approach the IEC to make the necessary changes.
'No jurisdiction'
Advocate Dali Mpofu, for the MKP, who had earlier argued that the application should be dismissed because it was not urgent, said the court had no jurisdiction to hear it and that the ANC had no standing to bring it because it was not the “registered proprietor” of the trademark. He said the urgency had been self-created.
“The ANC had sat back and done nothing regarding the alleged trademark infringement which it would have known about in June last year.
“They expect MKP, two months before an election when it has already campaigned, to suddenly change its name. How is that going to assist? If we call it uMkhonto full stop. Or uMkhonto kaZuma, will it make any practical difference?
“And they want all the posters taken down. We could just scratch out the part that says ‘weSizwe’?” he suggested.
He said it was an insult to voters that they would be confused about the logo and differentiating between the parties.
“There is no threat of irreparable harm because the alleged voter confusion is imaginary and unproven,” Mpofu said.
He said far from the MKP wanting to “associate” itself with the ANC, it was, in fact, disassociating itself from the ANC.
Speeches made by Zuma — in which he reportedly claimed the MKP was “one of the rooms within the ANC, which would be used to save the ANC” — could not be attributed to the MKP.
'Just a voter'
“There is no evidence that he is a member of the MK party. He is just a voter like you and me. And he says he will vote for it. There is no law that says if you are a member of the ANC that you have to vote for the ANC.”
Mpofu said the matter should be dismissed, and the ANC ordered to pay punitive costs.
“There is no reason why the MKP should be bankrupted by the ANC. They take us to Bloemfontein (where the Electoral Court this week dismissed an application by the ANC to have the MKP deregistered) and now Durban. For what?”
Earlier in argument, Marriott said the case was not about voter confusion but that MK was historically and indelibly associated with the ANC and the party was entitled to retain the goodwill attached to that after it had done all the “heavy lifting”.
“Goodwill doesn’t disappear overnight just because the MK can no longer fight a military struggle. The goodwill is that that struggle is associated with the ANC,” he said.
“Passing off is when you tell voters that there is an association between yourself and the proprietor of a well-known brand (MK) and through that you garner votes that you ordinarily would not garner. It’s a misrepresentation that results in a benefit.”
Logo
Regarding the logo, he said it was “confusingly similar” to that of MK, which was trademarked by the ANC and its use was unauthorised.
The MKP had intentionally used it to ride on the coattails of the ANC’s heritage “and ride all the way to parliament”.
Advocate Tshidiso Ramogale, also for the ANC, said the matter could not be heard in the Electoral Court because it did not deal with trademark issues. While the MKP said it was using the name and logo legally because it had been sanctioned by the IEC, Ramogale said: “You cannot ignore the Trademarks Act, because to do so means for as long as you are a registered political party you can use whatever trade mark you want.
“They could call themselves the Coca-Cola party and Coca-Cola would have no recourse. It means registered political parties would have free reign.”
But Mpofu said this case had nothing to do with Coca-Cola — and the correct forum for it was the Electoral Court.
He said Chetty should dismiss the case on this ground alone, let alone the fact that it was not urgent.
He said the registration of MKP by the IEC gave the party the constitutional right to the exclusive use of the name and the logo and this “could not be defeated by a statute, the Trademark Act”.
Advocate Muzi Sikhakhane, also for the MKP, said the legal battle was for “political mindshare” and it was not a battle for the courts.
“This is not a case of association, it's a case of dissociation from the ANC. There is no legitimacy in arguing that the MK party seeks to misrepresent itself as the ANC, in fact the opposite should be true,” he said, claiming that the ANC had already taken the selfsame issues to the IEC and had lost.
