Politics and Trade marks in South Africa : Unusual bedfellows
The law of unlawful competition entered the political arena in South Africa in late 2008, with round 1 going to the fledgling Congress of the People (COPE).
In order to understand the dispute one requires some understanding of the South African political landscape over the last 60 years. Fortunately the background is neatly summarised in the judgment. The ANC is the majority and ruling political party in South Africa. During the latter months of 2008, members of the ANC left the party to form a new political party, choosing the name Congress of the People. The ANC’s objection to COPE’s use of the name Congress of the People stems from the historical Congress of the People that took place in June 1955. It was this Congress that adopted the Freedom Charter which for some is the most important document in the history of the country.
The principles of the Freedom Charter underlie the Constitution of the Republic of South Africa, 1996. The court found that although the parties differ as to some nuances, the essential historic events that led to the Congress of the People in 1955 were not in dispute. After the National Party came into power with its apartheid policies in 1948 the South African liberation struggle intensified. The ANC was an important role player in the struggle and its allies included the South African Indian Congress, the South Africa Coloured People Organisation, and the South African Congress of Democrats. These activities culminated in the Congress of the People that was held in Kliptown on 26 and 27 June 2955. In due course the constituent organisations of the Congress Alliance individually adopted the Freedom Charter. Significantly, the ANC is the only one of the constituent organisations that still exists.
The African National Congress (ANC) had applied urgently for an interdict to restrain COPE from using the name Congress of the People and from registering its name as a political party in terms of the Electoral Commission Act, 51 of 1996. The party’s formal launch was scheduled for 16 December 2008, the matter was argued before a Full Bench of the Transvaal Provincial Division on 10 December and judgment was handed down on 12 December 2008. The implications of the judgment to COPE were enormous because as long as there is a question mark over the legitimacy of the name of the political party, its ability to contest the South African general elections which are expected in the first half of 2009 would be severely impeded. Imagine a delivery up order of ballot papers? In municipal by-elections which were held before the judgment, the COPE candidates had registered themselves as independents.
While the numerous press articles reporting on the legal dispute suggested that the ANC was claiming proprietary rights in the name Congress of the People, and even in the word congress, the ANC’s contentions in the High Court proceedings were a lot more realistic, as is inevitably the case when rhetoric in an open forum needs to be distilled into a sustainable legal argument.
The ANC’s contention was that COPE’s use of the name Congress of the People constitutes the delict of unlawful competition because the name conveys to the public a false message through which COPE will unfairly attract votes to the detriment of rival political parties. While the law of unlawful competition is normally tested in the context of commercial entities competing with each other in the traditional sense of trying to make a profit by providing goods or services, the parties and the court agreed that the law of unlawful competition applies to political parties on the basis that a political party may not employ unlawful means to attract votes. While the court did not explicitly state this, it is clear that in any democratic society there is a significant, albeit unquantifiable, pecuniary value in a political party’s ability to attract votes. Rightly or wrongly, there is money in politics and the robust approach of the court in accepting that "competition for votes" can fall within the ambit of unlawful competition is welcomed.
Once the court had accepted that the delict of unlawful competition applies to the ability to attract votes and the ANC’s argument was shorn of the rhetoric of its politicians (as reported in the press), this case became no different to a typical unlawful competition or trade mark dispute where one must test the facts against the law.
The essential foundation of the ANC’s case was that by appropriating the name Congress of the People, COPE is conveying a false message to the voters of South Africa. The court accepted that if by using a particular name, a political party deliberately conveys a false message to the voters, it will be competing unlawfully. The court then tested the message conveyed by the name from the perspective of a reasonable voter who is reasonably informed. The court found that the mere use of the name Congress of the People does not convey that COPE actually is the 1955 Congress of the People. No reasonable voter, even those with but a passing knowledge of the relevant history will think that COPE, a party established in 2008, is the event that took place in 1955. Those with no knowledge of the history will not be deceived because they will not know that the term Congress of the People might refer to an historic event.
The facts established that COPE intends to campaign on the basis that it seeks to uphold the principles of the Freedom Charter. The court found that the reasonable voter with knowledge of the relevant history will infer that that may be a reason why COPE calls itself the Congress of the People. However, the court found that such association is not a misrepresentation. The association does also not suggest that COPE is the sole heir and upholder of the ideals that originated from the 1995 congress. Needless to say, the court made it clear that the registration of the name Congress of the People as a name for a political party would not preclude the ANC, or any other political parties, from making references by name to the 1955 event known as the Congress of the People. The end result is, as the court observed, that the electorate will in time pass judgment as to whether COPE lives up to the ideals of the Freedom Charter. This is similar to any traditional trade mark dispute, the only difference being that in this case the voters are the consumers.
The ANC has publically expressed its intention to appeal the judgment. Pending the final legal determination of this dispute it will be interesting to see how the electioneering proceeds.