Johnathan Paoli
THE KwaZulu-Natal High Court has reserved judgement in an appeal by the African National Congress (ANC) on an earlier dismissal by the same court – of its bid to prevent the uMkhonto weSizwe (MK) party from using the name Umkhonto weSizwe and its logo.
The ANC returned to court on Thursday, following a ruling back in April this year, in which the court dismissed the former ruling party’s bid with costs.
Legal counsel for the ANC, Gavin Marriott, argued that the MK party deliberately chose to use the name and logo in an attempt to link the newly-formed party to the military wing of the former liberation movement.
Marriott said former President Jacob Zuma took unfair advantage of the power, and reputation associated with the former military wing’s trademark.
“That power of attraction has been built over a considerable amount of time, and what MK has effectively done, is adopting that mark, in order to not have to build up its own support,” he said and argued that the infringement continued as long as the MK party continued to use the name and logo.
As to ownership, Marriott argued that the ANC was at least a “joint proprietor” of the mark, and thus entitled to legal redress.
Representing the MK party, Dali Mpofu, however, said the appeal was moot, considering the elections have been concluded.
Mpofu said the previous ruling made it clear that a decision regarding the matter should have been resolved before the elections.
He said the urgent application was dismissed and it was problematic to pursue the case based on merits, despite the urgency having already passed.
In addition, Mpofu argued that the high court was not the most appropriate court to handle the matter, and that the case should be heard in the Electoral Court instead.
He said it was disingenuous of the ANC to stubbornly cling to the high court, considering the strategy of the party launching different cases in both the electoral and high courts on the same day before the May elections.
“They understood that to come to the high court for the trade mark, one of the issues is gonna be unfair use. They planned on the deregistration case, hoping it would deprive my client of the defence of authorised use. Unfortunately for them, that case failed,” Mpofu said.
However, Marriott said there will be future elections, by-elections, fundraisers and conferences that are all going to involve the use of the mark.
“That continued future use will continue to erode on the goodwill the ANC says it enjoys in the mark and name,” he said.
Some of the concerns raised in the defence of the MK party was whether section 34(1)(a) of the Trademark Act was applicable to political parties and whether the high court had jurisdiction over a matter that some have argued should have been heard in the Electoral Court.
Mpofu, previously said that the Electoral Court was the correct forum to ventilate the matter as the ANC had already invoked Section 16(2) of the Electoral Commission Act.
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