In recent years, the South African courts have been called on to adjudicate much-publicised trade mark disputes involving the names and logos of prominent political parties. The dispute between the ruling party, the African National Congress, and the ‘new' party on the block, uMkhonto Wesizwe, being the latest of such cases.
While political parties are not your usual commercial enterprises with obvious vested economic interests in their names/logos as trade marks, political parties' reliance on their names and symbols/logos, including slogans, to distinguish themselves in the political arena and to identify themselves to the electorate is no different from that of ordinary commercial enterprises in industry or in the trade that seek to attract custom.
This note looks briefly at the protection afforded to South African political party names and symbols or logos in terms of the Electoral Commission Act No. 51 of 1996 (“ECA”) and the Electoral Act No. 73 of 1998 (“EA”). Do these statutes afford sufficient protection to political party names and symbols? Is there a need for, as it were, dual statutory protection of these through the Trade Marks Act?
What do the ECA and EA protect and what is the scope or extent of their protection?
The ECA notably uses trade mark law terms/language in its requirement for political parties seeking registration to indicate, in their application forms, “…the name of the party; the distinguishing mark or symbol of the party in colour; the abbreviation, if any, of the name of the party…” (section 15(2)). It further prohibits the registration of a party if its “proposed name, abbreviated name, distinguishing mark or symbol mentioned in the application resembles the name, abbreviated name, distinguishing mark or symbol, as the case may be, of any other registered party to such extent that it may deceive or confuse voters” (section 16(1)(a)(i)).
Further, the EA prohibits the plagiarism by a registered party of another registered party's symbol, and states that, “no registered party or candidate may plagiarise the symbols, colours or acronyms of other registered parties” (section 9(1)(c). This provision is enforced through the Electoral Code of Conduct, which, in terms of the EA, must be signed by all parties that are participating in an election.
From these provisions, what then is the extent of protection granted to the names and symbols/logos of political parties? This must also be considered within the context of the scopes and purposes of this legislation, which is said to be to manage and to regulate elections of the National Assembly, the Provincial Legislatures, and Municipal Councils (section 2(1) of the ECA and section 3(a)-(c) of the EA). In other words, their scope and purpose as explained define, if you will, their application and enforcement parameters (i.e. within the ambit of elections and with the aim to prevent voters' confusion). In this context, protection is afforded to:
- registered political party names and symbols, from the registration of the same or resembling names or symbols by other political parties seeking registration with the Electoral Commission (IEC), which may deceive or confuse voters; and
- registered political party's symbols, colours, or acronyms of their names from plagiarism by other registered political parties.
But is this sufficient? In addition to the limitations of the legislations brought by the application and enforcement parameters as discussed, there are other factors that political parties should consider. The provisions grant only limited protection to political parties' names and main logos as presented in the parties' application forms when they were registered with the IEC, which is, prohibiting the registration of conflicting names and symbols by other parties applying for registration with the IEC. Other marks, symbols, and logos that are adopted or used by a political party in other contexts, for example, in relation to different structures within their organisations or any other pursuits, are not covered by the aforesaid provisions of the ECA and EA.
The ECA and EA also do not afford relevant protection to political parties in respect of the possible commercial exploitation of their brands through commercial ventures that they may pursue. It is not uncommon for political parties, with the aim to raise party funding, to engage in, for example, the sale of branded party merchandise; the licensing of names and logos to others to use in commercial activities for a financial benefit (e.g., production of branded regalia); the sale of written material and literature, etc. Trade mark registration statutorily secures exclusivity to registered marks for this purpose; and places the proprietor of the registration in a stronger position to act against the unauthorised use of its mark, and to also manage the authorised use of the mark.
Further, in respect of unauthorised use (within the ambit of elections and to avoid voters ‘confusion), the EA protects registered political parties' symbols, colours, or acronyms, from plagiarism. However, in terms of the relevant provision, the plagiarism must be by a fellow registered party, that has, in addition, signed the Electoral Code of Conduct for participation in a particular election. Furthermore, by definition, the word plagiarism denotes copying or reproducing an identical or virtually identical copy of the original. This brings challenges in the enforcement of rights, where a dispute involves confusingly similar (not necessarily identical) names/logos.
On the other hand, once a trade mark registration is granted, the proprietor of the trade mark, in this context a political party, is then placed in a position to take legal action, based on trade mark infringement, for an interdict and possibly a claim of damages, against any third party (not limited to registered political parties), that makes unauthorised use in the course of trade, of a mark that is identical or confusingly similar to its registered mark, in relation to the goods or services that are covered by its registration or similar goods or services, where there is likelihood of confusion or deception.
In summary, it is no doubt critical for all political parties to invest in securing appropriate protection of their names and symbols as trade marks, not only to statutorily secure exclusivity to their marks, but also to avail themselves to the statutory remedies of the Trade Marks Act, when trade mark disputes arise.
According to the Electoral Commission's website, there are over 300 registered political parties, and out of that number, 52 parties were contesting the 2024 national elections. It would be interesting to view trade mark registration statistics of these political parties.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.