ANC v MK: Trademark Infringement

Trademark Disputes

In today’s judgment of the High Court Kwazulu-Natal Local Division, Durban, between the AFRICAN NATIONAL CONGRESS (ANC) and UMKHONTO WESIZWE (MK), and the ELECTORAL COMMISSION OF SOUTH AFRICA, the application by the ANC seeking a final interdict against MK on the basis that the latter infringed its trademark, was dismissed with costs.

The grounds were, inter alia:

This matter is essentially an electoral matter, and the decision by the IEC that MK’s use of the Warrior with Spear device and phrase uMKHONTO weSizwe would not confuse the public stands. The ANC’s appeal to the Electoral Court against the IEC’s decision was out of time and therefore dismissed.

The Durban High Court has no jurisdiction to hear the trademark infringement matter because the matter is already decided by the IEC, which has jurisdiction over all electoral matters. The relief which the ANC seeks under the rubric of trademark infringement, when considered in its context, falls par excellence into the sphere of ‘electoral matter’ and political rights through the wider prism of the Constitution.

But in any event:

  1. The Warrior with Spear device was not infringed by MK’s device – The position of the average voter should not be compared to that of a consumer who may be misled when deciding whether to purchase a particular brand of coffee or teabags; and
  2. The trademark is registered in class 41 for education, entertainment, cultural activities including legacy projects which the court is not persuaded by the ANC’s argument that ‘electoral politics’ falls within the scope of class 41.

To view the full judgement – Follow this link:  ANC v MK – FINAL -JUDGMENT DELIVERY – 22 APRIL 2024

 

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