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Tebogo Sithathu, Zuma supporter, makes out-of-court claims he trademarked the MK symbol in 2014
Controversial musician and former ANC supporter Tebogo Sithathu says he trademarked the symbol for the ANC’s disbanded anti-apartheid military wing Umkhonto weSizwe in 2014, potentially throwing a spanner in the ANC’s case against the MK party.
Staunch supporter of former president Jacob Zuma, Tebogo Sithathu, who is the chairperson of a non-profit organisation called the Legacy Project, has come forward to say that he has already trademarked the Umkhonto weSizwe symbol.
He claims that the trademark registration 2014/22089 of the figure with the spear and shield device was registered by his organisaton and that his rights over the symbol will expire only in August 2024. Sithathu reiterated that he would be renewing the trademark to maintain ownership over it.
“We have had this for 10 years and we have every intention of renewing it. We still do own it. We are taken aback that we are not in court and we are watching this case with keen interest and we want to see what the judgement will be,” he said.
According to an analysis by patent attorney Karel Bredenkamp from Brian Wimpey and Karel Bredenkamp Intellectual Property Attorneys, the trademark registration by Sithathu is valid.
However, he notes that there is always a possibility that the Legacy Projects trademark is expungeable for non-use or they may also not be the proprietor of the copyright in the artwork.
“If Legacy Projects 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,” according to Bredenkamp.
This development comes as the case regarding MK’s alleged infringement of the trademark of the ANC’s disbanded paramilitary wing, Umkhonto weSizwe continued in the KwaZulu-Natal High Court in Durban on the afternoon of Wednesday, 27 March 2024.
Sithathu said the ANC, as the applicant in the matter, made no attempt to reach out to him about the trademark.
“From our intelligent minds, we thought that someone would have done research to see if the ANC as the aggrieved party and even the arms of judiciary who are involved in the jurisprudence of this thing. For it to be in the high court without anybody even making contact with us — wow,” he said.
However, in a 27 March statement, the ANC said the Legacy Project had signed a Deed of Assignment, “granting the African National Congress full ownership of the uMkhonto weSizwe trademark, including all goodwill that has accrued in the uMkhonto weSizwe trademark through its use and promotion.”
Read more in Daily Maverick: First blood — ANC fails in bid to deregister Zuma’s MK party before Electoral Court
Sithathu reiterated that he has no problem with the MK party using the symbol as they had been engaged in a number of meetings but would not divulge who exactly attended the discussions. He explained that it was registered under category 41, which covers education, training, entertainment and sporting and cultural activities.
“We were okay with the MK party using the symbol because we are not a political party, we are a legacy project. Remember, we registered it under category 41. We did not have to cover the political space because we are not a party.
“We have been having discussions with the MK party in this regard but we did not see it fitting to take it into the public space as they are the ones being taken to court.
“So, we were under the impression that somehow someone will do the research before taking the MK party to court. We deliberately kept quiet to see this drama unfold and also we would like to see what the judiciary will say in the judgement because it will be an indictment on them as we own the trademark,” he said.
Sithathu has been embroiled in controversy before. According to a GroundUp report from 2021, his organisation the Gospel Music Association of South Africa received close to R10-million in National Lottery grants but it was unclear how the funds were spent.
GroundUp also reported that Sithathu harassed Kaizer Nengovhela, a journalist from the Limpopo Mirror, when he was investigating dodgy National Lottery grants awarded to a drop-in centre in Limpopo linked to an ANC councillor.
Sithathu reportedly had close links to the National Lottery Commission (NLC) and was kicked out of a virtual parliamentary committee meeting discussing the NLC for attacking the DA’s Dean Macpherson.
Sithathu was also listed as the director of a group apparently established to counter GroundUp’s reporting on National Lotteries grants. amaBhungane wrote, “
ANC Umkhonto weSizwe legacy
In an affidavit, the ANC’s Secretary General Fikile Mbalula set out how the historical context shows the trademark belongs to the ANC.
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.
This is the same registration number as that quoted by Sithathu.
Expert analysis
Bredenkamp, who is not a party to the court proceedings, 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; organisation 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 goes 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 trademark 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 Projects 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.
The party was dealt a blow earlier this week after the judgment handed over on Tuesday set out that the registration of the MK party was lawful.
Why trademark Umkhonto weSizwe?
Sithathu claims to have had a close relationship with late MK veteran Kebby Maphatsoe, which prompted him to go ahead with registering the trademark.
“This was inspired by the late former president of the uMkhonto Military Veterans Association while he was still alive. The MK was long disbanded by the ANC, we did not know it would become a political party one day. Which is why we chose class 41, which is covering the cultural, entertainment but also extended it to cover the legacy programme,” he said.
While Sithathu is no longer a member of the ruling party, he explained that he spent many years serving in the party.
“I have worked with the ANC as a member and a leader in the branch, Liliesleaf as the secretary in Midrand. I was an active member of the ANC for many years, like president Zuma. I am disappointed today with the status quo and the lack of transformation under the ANC government,” he said.
A video of Sithathu recently made the rounds where he tries to sing the infamous song “wenzeni uZuma” (what has Zuma done?) at an ANC gathering at the Birchwood Hotel and Conference Centre. He was immediately stopped as the mic was grabbed from him. The ANC meeting was held to discuss the Copyright Amendment Bill.
“How do I go and speak to the ANC and SG [Mbalula] when they feel like I am out of order? Why is it my problem if the ANC is in turmoil because of the MK party? If they had transformed the party, there would not be so many people breaking away.
“With the kind of reaction I got [when I tried to sing the song] when I was ready to approach them, I realised that I am going to be more antagonised because I was even threatened by some comrades after the incident. I was removed from the branch WhatsApp group after this,” he said.
The trademark case was ongoing in court at the time of writing. DM
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As far as I know : if you lodge an application with a copy you made of somebody else’s logo then you are guilty of fraud.
For 13 years I ran the ANC Liberation Press doing design and layout origination and lithographic printing over over 2000 underground and globally deseminated publications producing millions of sheet runs. I also served on the editorial boards of a number of its publications including it’s premier journal SECHABA. Furthermore I was on the small design team that created the ANC logo and the team that managed it’s branding in all it’s publications. Unfortunately the current ANC has treated its veterans terribly and alienated many of us because we have been critical of its delinquency, corruption and deviation from political fundamentals that once defined the movement. As a result of this alienation of veterans it has lost much institutional knowledge and the current SG and leadership have somewhat of a flawed, deficient and caricature understanding of the organisational history and legacy and thus could not comprehensively brief their legal counsel in this case. The key fact that is overlooked is that the warrior logo was not just the MK logo but also the mast head logo of the ANC official mouthpiece Premier journal Sechaba and thus an ANC brand. The masthead used all colour’s as background for the warrior brand so no amount of tampering with it matters. The publication was received by all major institutions like the UN, and state libraries of governments around the world. This argument was not used in Court.