across the bar

 

The Apartheid Museum which is located near Gold Reef City in Johannesburg was launched in 2001 and since then has become a well-known institution.

It has also been the subject matter of intense litigation, the most recent of which came before the South Gauteng High Court in South African Apartheid Museum at Freedom Park v Stainbank and Another.

Prior to the establishment of The Apartheid Museum the trade mark THE APARTHEID MUSEUM was registered in Arnold Stainbank’s favour in 1998. Arnold Stainbank accused the South African Apartheid Museum of stealing his idea of an apartheid museum and alleged that they were infringing the trade mark registered in his favour.

The South African Apartheid Museum challenged Stainbank’s rights to the exclusive use of the words THE APARTHEID MUSEUM and asked the court to order the Registrar of Trade Marks to expunge the registered trademark from its records.

Stainbank tried to argue that “the apartheid museum” had been his very own, original idea for several decades and, adoringly, he should enjoy exclusive use of the expression contained in the trademark. The Court was quick to point out that apartheid had formed part of the ‘collective consciousness’ of all South Africans and that the ‘memory’ was owned by all the people of South Africa, collectively. Therefore it could not be the subject of ownership by private persons and the memory was incapable of being stolen.

In terms of section 9 of the Trade Marks Act a trade mark must be capable of distinguishing the goods or services of a person in respect of which it is registered or proposed to be registered from the goods or services of another person either generally or subject to limitations. Should a trade mark fail the distinctiveness test it will not be registered.

The Court turned to consider whether the words “the apartheid museum” had the quality of distinctiveness.

The Court held that the words “the apartheid museum” did not stand apart from the ordinary, everyday use which members of the public have adopted or were likely to adopt to describe a similar service provided by another trader. Instead members of the public were likely, naturally and spontaneously, to adopt the words “the apartheid museum” when referring to any museum established with a view to focusing on apartheid. Therefore the words “the apartheid museum” were inherently incapable of distinguishing one apartheid museum from another.

The Court therefore found that Stainbank’s claim to have the exclusive use of the words “the apartheid museum” could not be justified and ordered that the trade mark be expunged from the Registrar of Trade Marks records.