The ANC has lost its court bid to compel political rival the uMkhonto weSizwe Party (MKP) to change its name and logo.
The ANC went to court in an urgent application, heard earlier this month by Durban high court judge Mahendra Chetty, claiming it had a trademark over the name and the logo. But Chetty on Monday ruled it had not made out a case for the relief it had sought, the application was not urgent and the party should have approached the Electoral Court, not the high court.
He said while ordinarily the lack of urgency and jurisdiction would result in the matter being struck from the roll he would deal with the merits because of the legal importance and the overriding public interest in what was a trademark dispute. He would do so bearing in mind the disputed history of the origins of the name uMkhonto weSizwe and the logo of the African warrior.
Chetty said to succeed the ANC had to show the use of the trademark was unauthorised.
Referring to case law, he said when the logos were compared side by side consideration had to be given to whether the average customer in the marketplace would probably be deceived or confused by their similarity.
“It is important to bear in mind that when comparing the registered mark to that of the MKP, the latter has a bold green background. Counsel for the ANC suggested this makes no difference as the registered mark is not restricted to any colour. I beg to differ as the marks are what the voter will be confronted with.
“The section [of the Trade Marks Act] requires of the ANC to show the MKP have used a confusingly similar mark in relation to the identical goods to those for which the proprietor has obtained registration.
“Apart from the distinctive green background, on observation the registered mark of the ANC and that used by the MKP are similar, though a careful eye will notice a difference at the height in which the spear is held by the warrior.
“The inquiry is whether a voter of reasonable intelligence is likely to be deceived or confused by the use of the registered mark with that of the MKP.”
Any link of closeness would, in my view, be self-defeating for the MKP
— Durban high court judge Mahendra Chett
Before the hearing he had asked the parties to provide graphic illustrations of the logos which would appear on the ballot paper.
Even if the ANC chose to use its registered mark of the African warrior on the ballot, the distinctive green background used by the MKP would be sufficient for voter distinguishment between the two. That was an assessment to be made by the IEC which had already affirmed the symbol to be used by the MKP would not deceive or confuse voters.
“Our history also tells us despite our relatively short democracy, the South African public is finely attuned to the political rhetoric by various parties,” Chetty said.
“The position of the average voter should not be compared to that of a consumer who may be misled when deciding to purchase a particular brand of coffee or tea bag at a supermarket.
“There can be no confusion, in my view, that will confront a voter in the sanctity of the voting booth when confronted with the symbols of the ANC and the MKP.”
He said it had not been established that the marks resembled each other so closely that deception or confusion would arise.
On the issue of “passing off” — that the MKP was scoring an unfair advantage by the use of the trademark to the detriment of the ANC — Chetty said the MKP was campaigning as an alternative to the ANC and “any link of closeness would, in my view, be self-defeating for the MKP”.
“Where two political rivals are competing for votes in a national election it is unlikely for it to be in the interests of the MKP to associate itself with the ANC.”
The ANC had failed to establish a clear right to what would be final relief. It had an alternate remedy of approaching the Electoral Court to undo the registration of the MKP and its reasons for not doing this were unknown.
The mark was registered under a classification which provided for education, training, entertainment, sporting and cultural activities.
“It is not entirely clear to me how the use of the mark in political activities will fall into this class.
“I am not persuaded by the ANC’s argument that ‘electoral politics’ falls into this class.
“One must not lose sight of the fact that the rights secured as a result of being registered as a political party include the right to campaign for a political party or cause, which is protected under the Bill of Rights.”
Regarding costs, Chetty said the ANC had chosen to bring the application in the incorrect forum and the MKP had asked for punitive costs. However, the ANC was seeking to protect its own political rights and while the application might be misguided, Chetty said he did not find that it was frivolous or reckless.
He dismissed the application, ordering the ANC to pay costs on a normal scale.
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