Durban — The ANC could not claim the trademark because it did not register uMkhonto weSizwe in the intellectual property register as its trademark; instead it was registered by Legacy Project.
This was the main argument by the MK Party’s legal team led by advocates Dali Mpofu and Muzi Sikhakhane in the Durban High Court on Wednesday.
The ANC went to court already wounded after a hard-hitting statement by the Legacy Project which said it was disturbed that its trademark was being debated in court without it being consulted.
In a statement, the Legacy Project said it was the legal owner of the uMkhonto weSizwe trademark, not the ANC. The ruling party’s legal team led by advocate Gavin Marriot first presented its arguments as the plaintiff in the matter.
It argued that traditionally the name uMkhonto weSizwe and the logo of the spear were its property, so the court must direct the MK Party to stop using it on the ballot. The ANC further said the use of the name and logo by the MK Party would confuse voters on voting day.
In response, Mpofu argued that the ANC could not claim the name since it did not own it as it was now known that it belonged to the Legacy Project. He also raised the issue of jurisdiction as well as locus standi. On jurisdiction, Mpofu said the ANC first raised the trademark infringement issue with the Electoral Commission of South Africa (IEC); then abandoned it and ran to the Durban High Court. The ANC could have gone to the Electoral Court since it was dealing with an election matter.
Mpofu’s second point was the locus standi, saying the ANC had no right to take this matter to court since the legal owners were the Legacy Project.
After the break, advocate Sikhakhane argued that it is ridiculous to think that voters will confuse Cyril Ramaphosa’s face on the ballot with whoever will be the face of the MK Party.
After Sikhakhane, advocate Marriot – who specialises in intellectual property rights – came back, asserting that there is no legal requirement stipulating that registration must precede the claim of ownership of a trademark.
The judge enquired about the ANC’s desired outcome in the case, to which Marriot responded that the ANC seeks to prevent the MK Party from using its logo and name. He further suggested that the MK Party could opt to change its name while still participating in the elections.
The judge indicated that a ruling in favour of the ANC would require the cessation of the MK Party’s political activities.
In his response, Marriot said the MK Party could use other names but the judge said a party must first obtain authority before using any name to campaign for elections.
Judgment was reserved.
Addressing ANC supporters outside court, ANC secretary-general Fikile Mbalula said the Legacy Project registered the MK name as its trademark and then ceded it to the ANC.
He vowed that if the party loses the case it will appeal, saying the ANC will never allow former president Jacob Zuma to take such an important ANC heritage away from it. He accused Zuma of using ANC heritage and trademark to benefit his party, arguing that if he believed he had support he should have called his new party another name or uMkhonto kaZuma.
As for the confusion, Mbalula, without calling the African Independent Congress (AIC) by name which has colours close to that of the ANC, said there was a party that had benefited from the ANC’s colours and managed to get seats in Parliament and other municipalities.
Although the AIC was formed by the Matatiele people who were against the incorporation of their local municipality to the Eastern Cape from KwaZulu-Natal in 2006, surprisingly it managed to get seats even in KwaZulu-Natal and Gauteng municipalities which the ANC claimed was because of confusion.
Mbalula said Zuma expropriated ANC property without compensation, calling it a daylight robbery.
Addressing MK Party supporters, Zuma said the ANC had no case against the MK Party but had taken a chance knowing that they were winning all cases involving him.
He said the ANC disbanded the MK and the name belonged to anyone as they have spears in their respective homes.
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