ANC loses MK registration fight, hopes to win logo battle

The ANC lost its court battle to keep the uMkhonto weSizwe (MK) party off the ballot this week, but still hopes to stop it from using the name and logo of its former military wing going into the 29  May elections.

On Wednesday the ANC asked the Durban high court to assert its ownership rights over the logo used by the MK party since it was registered last year, saying that the Electoral Act allowed a party to do so.

The ANC did so the day after the electoral court rejected its bid to have the registration of the MK party with the Electoral Commission of South Africa (IEC) declared unlawful, telling the ruling party it was its “own fault” that it had missed the deadline to do so.

Thousands of supporters of both parties turned out for the court hearing on Wednesday, at which MK party leader Jacob Zuma and ANC secretary general Fikile Mbalula were present. Both addressed their supporters at the conclusion of the day’s court hearing.

In his oral argument, ANC counsel Gavin Marriott argued that the MK party was guilty of both abuse of the ruling party’s rights over the uMkhonto trademark and of “passing off” by telling the voter that there is an “association with the ANC”.

The MK party was “riding on the ANC’s coattails” by using the logo, which it had chosen with the intention of “confusing” voters ahead of the 29 May elections.

This “confusion and deception” would arise, and had already arisen, “long before they get to the ballot box” through the use of the ANC’s trademark and in speeches made by MK party leaders.

The MK party logo had adopted a logo that was “confusingly similar” and “almost identical” to that of the ANC’s former military wing “for a reason”, which was to capitalise on the “goodwill” attached to the governing party.

“Of all the logos they could have used, they adopted one which is identical to that of the MK warrior. They are trying to draw the link. There is no other reason to have done that,” Marriott said.

He said the ANC had done the “heavy lifting” in the building of the MK brand, which was “clearly well known” and had generated goodwill since the days of the anti-apartheid struggle. 

“What [the] MK [party] seeks to do is ride on the coattails of the ANC’s heritage and ride it all the way into parliament,” he said. “They don’t have their own history and legacy and they are riding on the coattails of the ANC’s history and legacy to achieve the same advantage as the ANC.”

The confusion on the part of voters would not only happen at the ballot box, but “it is part of the process that is happening right now”, Marriott said.

“That is part of the entire strategy of the MK, to make sure that they claim to be one of the rooms of the ANC … part of the same uMkhonto.”

He told the court that it had the power to hear the case as issues of trademark had not been dealt with by the electoral court.

Turning to remedy, the law allowed a party to change its name, logo or abbreviated name after registration with the IEC, he said.

In his oral argument, the MK party’s counsel, Dali Mpofu, said the high court did not have jurisdiction to hear the matter and the ANC should instead have appealed the 24  November ruling by the electoral commission in favour of the MK party or taken it on review.

He said the ANC was not the sole proprietor of the MK name and logo, because these were registered in the name of the MK Legacy Project.

Mpofu said the assignment of rights from the MK Legacy Project to the ANC on 23 September last year did not give the ANC standing to bring the trademark application because it was not the registered sole proprietor of the trademark.

Further, the alleged abuses of the trademark took place before the agreement between the ANC and the MK Legacy Project, and any private agreement between the two did not apply to a third party such as the MK party.

Mpofu said the “real trigger” for the ANC’s decision to go to court was the announcement by Zuma on 16  December last year that he was endorsing the MK party at the polls.

Mpofu said the ANC had the “ulterior” purpose of trying to “circumvent the political rights of the MK party and its fortunes in the elections” by approaching the court.

“This is patently clear,” Mpofu said. “Nobody has suggested otherwise.”