ANC granted leave to appeal trademark ruling against MK

This decision allows the ANC to approach the Supreme Court of Appeal as it continues its fight over the use of the uMkhonto weSizwe name and logo.

The ANC sued former president Jacob Zuma's newly formed MK Party, accusing it of violating trademark laws by using a name and logo similar to those of its disbanded military wing, uMkhonto weSizwe.

 The court initially dismissed the ANC’s application, stating it was not urgent and should have been directed to the Electoral Court.

The MK Party argued that the logos are not the same, urging the ANC to accept the ruling.

However, the ANC contended that the MK party's use of the logo in future elections would undermine the goodwill associated with the uMkhonto weSizwe name.

The High Court has now found that there is a reasonable chance that another court might arrive at a different conclusion.

In a judgment delivered on Thursday, Judge Mahendra Chetty found that there is a reasonable prospect that another court might arrive at a different conclusion.

"Despite my finding that the matter lacked urgency, that the ANC was vested with certain electoral and political rights, and that the High Court was the incorrect forum to challenge alleged trade mark infringement, I proceeded for reasons fully set out in my judgment, to deal with the merits of the trade mark infringement.

“In this respect, counsel for the ANC contended that if one accepts (as I appeared to) that the High Court is the proper court to determine disputes in terms of the Trade Marks Act, then it must follow that the Electoral Court, for that reason could not have determined the trade mark dispute between the parties.

“Counsel accepted, however, that if another court found that the Electoral Court would have jurisdiction in the matter, the remaining issues raised by the ANC would fall away," wrote Chetty.

Chetty said that the  ANC asserted that the dispute concerning the name and logo is a trade mark dispute and doesn’t concern a political party's right to free and fair elections.

"Accordingly, it was submitted that I erred in characterising or framing the issue for determination.

“Counsel for the MK party, on the other hand, submitted that the ANC framed the dispute based on what is set out in their founding papers and that the arguments now advanced are an ex post facto attempt to reframe the dispute.

“The MK Party further contended that the attacks against the lack of urgency, locus standi, and jurisdiction are 'hopeless' and that another court should not be detained by having to revisit my decision on trademark infringement, particularly as the judgment compared the marks as they would appear to a voter in the elections of May 2024 and found no basis for the infringement complained of.

“I posed to counsel for the MK Party whether it was open to the ANC, if it believed that its reputation was being infringed by the continued use of the name and identifying mark by the MK party, to take future steps to protect its interests? Counsel submitted that the ANC could institute a new application with respect to any risk that it might suffer.

“The ANC, however, contends that my judgment is final and binding on the parties insofar as the trade mark infringement is concerned, and any new application instituted would be met with a plea of res judicata," explained Chetty.

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