Device A
Device B
The ANC has apparently filed an application for an interdict against the new political party, MK, citing, inter alia, infringement based on the use of Device A, which resembles the ANC’s registered trademark Device B. Additionally, the matter incorporates the utilisation of the phrase ‘uMKHONTO WESIZWE’ by MK in comparison to the ANC’s apparent trademark ‘MKHONTO WE SIZWE’, as well as non-IP issues under the Electoral Act.
Analysis of Trademark Infringement
Should the ANC hold a valid registered trademark for Device B in South Africa, and MK offers services in respect of or under Device A, I would have no hesitation in concluding that MK has infringed the ANC’s trademark due to the confusing similarity between the two devices, even if not identical.
Similarly, if the ANC owns a registered trademark for ‘(U) MKHONTO WE SIZWE’, MK’s use of ‘uMKHONTO WESIZWE’ could constitute infringement regardless of the slight variation in spelling.
Trademark Registration Status
However, a perfunctory search on the South African register reveals no registered trademarks for either the Warrior Device or UMKHONTO WE SIZWE but discloses a number of 2023 trademark applications for UMKHONTO WE SIZWE across various classes and applications for the Warrior Device
in two classes.
Legal Recourse Without Registered Trademarks
A registered trademark is a prerequisite for trademark infringement. If these trademarks are not registered, then the ANC’s recourse on the IP front would be to rely on passing off, which presupposes that the ANC (and no other distinct organisation) has acquired a reputation and goodwill in the Warrior Device and phrase, ‘UMKHONTO WE SIZWE’.
If the MK’s response to the ANC’s litigation is anything to go by, it will attack any suggestion that the provenance and use of both symbols belong to the ANC alone.
Indeed, even if the ANC were to own registered trademarks for both, the question arises about whether either mark has been used consistently as a trademark as opposed to a political slogan.
Classic trademark infringement requires that the offending mark be used as a trademark. If doubt persists regarding the use of these marks as trademarks, the ANC could explore infringement by dilution under section 34(1)(c) of the Trade Marks Act as an alternative legal avenue. But this is an entirely different ball game.
Brian Wimpey, Trademark Attorney at Bredenkamp IP Attorneys recently joined Africa Melane on 702’s Early Breakfast show to discuss the technicalities of the case. Listen to the interview here:
https://omny.fm/shows/early-breakfast-talk/the-technicalities-of-the-ancs-case-against-mk
