One of the directors of the non-profit organisation Legacy Project — Rapitse Montsho —says the trademark of the uMkhonto weSizwe logo was done in 2014 after being prompted by late ANC MK veteran Kebby Maphatsoe.

He went on to slam anyone who has come out to claim the logo amid the court battle between the ANC and MK.

Last week staunch supporter of former President Jacob Zuma, Tebogo Sithathu, claimed to be the rightful owner of the trademark but it has been recently revealed that he was not being truthful.

The controversial musician misrepresented himself in an interview with Daily Maverick but Montsho claimed to clarify the truth in a discussion with public broadcaster the SABC this week.

“He [Sithutha] misled the public and I asked him to withdraw the statements circulating in the media. He cloned the company name and registration number and the certificate of ownership and then called himself a commander and I do not know where he is a commander. I misled everyone including myself, he said he was not going to go on air but he did.

“We organised ourselves as an organisation which will acquire the historical legacy from the MK perspective. We have an MOU with Unisa to archive the history of MK. We were instructed by Kebby and Ayanda Dlodlo who requested that we register the logo,” Rapitse Montsho said.

Montsho went on to explain that the logo was handed over to the ANC without remuneration.

“Last year we signed off the rights of the logo to the ANC. We handed it over at no cost and we do not want to be paid. We were members of MK of the ANC. After all, it was designed by SACP and ANC stalwart, Barry Vincent Feinberg. ” he said

The trademark registration 2014/22089, figure with the spear and shield device was registered by Legacy Project and the rights over the symbol will expire only in August 2024.

The matter regarding MK’s alleged infringement of the trademark of the ANC’s disbanded paramilitary wing, Umkhonto weSizwe is underway at the Durban high court.

Read more in Daily Maverick: First blood — ANC fails in bid to deregister Zuma’s MK party before Electoral Court

In an affidavit, the ANC’s Secretary General Fikile Mbalula set out that the historical context of the trademark belongs to them.

The affidavit addresses concerns by the ANC that the use of the name of its disbanded apartheid-era military wing could lead the public to think it has ties to the governing party.

“Although MK cannot continue existing as an army, its history is with protecting and sharing with generations to come…I submit that it would be an untenable situation if the first respondent was allowed to dilute such a rich history for its own purposes, by illegally and unlawfully abrogating to itself any name that it thinks would have political traction, in this case, a name people have literally died for, uMkhonto weSizwe,” the affidavit reads.

Mbalula explained that by virtue of a deed of assignment effective from 23 September, the governing party would be the proprietor of the logo under trademark registration number 2014/22089.

In annexure FA4 of the court documents, the deed of assignment shows that Legacy Project signed over the trademark on 23 September 2023.  The deed was signed by Montsho in his capacity as Director while the Acting ANC General Manager Febe Potgieter signed the document on behalf of the governing party.

Expert analysis

According to analysis by patent attorney Karel Bredenkamp from Bredenkamp IP Attorneys, the trademark registration by Montsho is valid.

However, he notes that there is always a possibility that the Legacy Project trademark is expungeable for non-use or they may also not be the proprietor of the copyright in the artwork.

“If Legacy Project is not the bona fide proprietor of 2014/22089 warrior with spear device, the ANC is entitled to seek expungement of the registration if it believes that the registration will pose a bar to registration of its class 45 and 36 trademark applications,” said Bredenkamp.

The attorney further explained that the ANC appears to have made two trademark applications last year:

1. 2023/26510 for the exact warrior with spear device in class 45 for political services including advisory, information, communications, and consultancy services; political campaign consulting; organization of political meetings.
2. 2023/26509 again for the identical warrior with spear device in class 36 for fundraising activities.

Read more in Daily Maverick: DA and Zuma’s MK party big winners; ANC and EFF flop, new Brenthurst survey finds

He went on to explain that because the governing party does not own the trademark to the symbol, it might be harder for them to convince the courts.

“A trade mark registration is a prerequisite to seeking relief under the trade marks act and the ANC seemingly does not own a trade mark registration for the warrior with spear device either as depicted in Legacy Projects trademark registration or apparently as has been used by the ANC in the past.

“The ANC seems to be in an almighty upward battle to succeed against MK and to obtain registration of their trademark applications in light of the Legacy Project trademark,” Bredenkamp reiterated.

The ANC first submitted an appeal to the IEC regarding the use of the name and logo of their disbanded military wing last year, but was unsuccessful.

It is important for the party to win this case as it was dealt a blow after the judgment handed over last week, which set out that the registration of the MK party was lawful. DM