The ANC has vowed to appeal Monday’s Durban High Court judgment which gave permission to uMkhonto weSizwe Party (MKP) to continue using the name and logo of the governing party’s disbanded liberation-era military wing.
The ANC went to court in an urgent application, claiming it had a trademark over the name and the logo, but Judge Mahendra Chetty dismissed the ANC’s case on the basis that the party did not contest the matter at the inception of the registration of the MK party.
He also ruled that the application was not urgent and the party should have approached the Electoral Court, not the high court.
Judge Chetty said the section (of the Trade Marks Act) which the ANC relied on required that they 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.”
Judge Chetty said even if the ANC chose to use its registered mark on the ballot, the distinctive background used by the MKP would be sufficient for a voter to distinguish between the two. The Electoral Commission of South Africa (IEC) had already found that the MKP symbol 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,” the judge added.
“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.”
ANC secretary-general Fikile Mbalula on Monday told a media briefing that the party would appeal the judgment to “stop and and prohibit the unlawful use of the ANC trademark symbols and heritage by Mr Zuma’s party, currently referring to itself as the uMkhonto weSizwe party”.
“In appealing the judgment, the ANC will centre on the question of whether the unauthorised use of one's intellectual property is consistent on what and how the unauthorised party uses the property for,” Mbalula said.
The MKP yesterday said it welcomed the ruling, describing the case as a “futile attempt to derail the party”.
Founder of the MK Party, Jabulani Khumalo, speaking outside court on Monday, said the party was delighted by the ruling.
“We won with costs, which is what we were looking for. They can appeal as many times as they want but we will win. They were trying to destabilise us from our good cause, which is to win the elections,” Khumalo said.
MK Party supporter, Phelelani Mkhwanazi, said the court ruling vindicated the party’s leadership.
“The ANC was being desperate, trying by all means to block us because they realise they are losing the support on the ground.”
Political analyst, Professor Bheki Mngomezulu, said he would have advised the ANC not to take the matter on appeal.
“By appealing, this essentially means the ANC is canvassing for the MK Party because it gives them more popularity, while at the same time it portrays the ANC as a desperate party that will do anything and everything to grab whatever remains of the undecided voters. That doesn't augur well for the party.”
Another analyst, Professor Ntsikelelo Breakfast, described the ruling as a setback for the ANC and a boost for the MKP.
“I think the secretary-general of the ANC must take full responsibility because the party was registered last year in June and the ANC was made aware in September.
“However, the ANC filed an application to question the trademark in December.”
The Mercury