The ANC has been given leave to appeal to the Supreme Court of Appeal in the matter in which it lost its court bid to compel political rival the Jacob Zuma-led uMkhonto weSizwe Party (MKP) to change its name and logo.
Durban high court judge Mahendra Chetty heard arguments recently in the ANC’s application for leave to appeal.
On Thursday, he ruled that the appeal, which he said had implications for the parties concerned and their members at national level, had prospects of success.
Chetty said another court could differ from the views he held, including those relating to jurisdiction and the merits of the alleged trademark infringement.
The ANC, in its main urgent application which was argued ahead of the May 2024 general election, claimed it had a trademark over the name and the logo.
But Chetty, in April, 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 essentially a trademark dispute matter.
He said to succeed the ANC had to show that the use of the trademark was unauthorised in light of the fact that the party had been registered by the IEC.
Referring to case law, he said when the marks 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.
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
— Judge Chetty - in his April ruling
Chetty found: “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 the marks resembled each other so closely that deception or confusion would arise.
On the issue of “passing off” — 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.”
He said the ANC had failed to establish a clear right to what would be final relief.
In his ruling on the application for leave to appeal, Chetty said counsel for the ANC had contended that irrespective of any decision by the IEC to register the MK as a political party, this did not mean it could also deprive the ANC of the protection afforded to its intellectual property and trademark.
On this score alone, it was argued, another court might reasonably conclude he erred in finding that the IEC’s decision resulted in a “vesting of rights” in the MK Party.
Chetty said the MK Party argued as the elections were now over, any appeal would be moot.
But the ANC argued the allegations pertaining to the trademark infringement were not time-based, and the party would continue to suffer the risk of reputational erosion as a political party for as long as the debate regarding the name and logo remained unresolved.
It argued leave to appeal to the SCA should be granted in light of the significant public interest in the matter and the novel issues involved.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.