The Nelson Mandela name should ideally not become the focus of commercial dispute. But if the past is anything to go by, I suspect we will see conflicts arising as to the devolution of his estate and ‘ownership’ of his name once, over the course of time, the unity brought about by his death has dissipated. The name MANDELA and brands such as his 46664 prison number and MADIBA have been registered as trade marks in the name of the Nelson Mandela Foundation, which has been circumspect in enforcing the brands, perhaps because Mandela’s legacy is a public one and the line between bona fide use and its opposite is not always easy to draw. The Nelson Mandela Foundation as the custodian of the Mandela brands “owns more than a dozen copyrights and trademarks for Mandela, which it uses for fundraising and charitable works.” Reuters Dec. 8, 2013. There will inevitably be conflict as to whom should benefit commercially from Mandela’s legacy, particularly if the MANDELA brands are used by his children and close relatives. There is no doubt that Mandela’s family is entitled to use the Mandela surname, even in commerce, but trade mark law will only provide an exception to infringement if such use is bona fide. The Mandela Foundation will have to juggle the many legitimate competing claims to the brands and decide which of them to countenance and which to interdict, at the risk of annoying people who feel that they have every right to form part of and enjoy the fruits of an iconic legacy. In the case of the many trusts and charities legitimately operating under the MANDELA brands, one can only hope that the good work of these organisations is not disrupted by family feuds or outright brand theft by third parties.
This commentary was prepared by Brian Wimpey (email@example.com / +27 11 685 8967) of Norton Rose Fulbright’s South African’s Intellectual property group.