The Madiba trademark battle
Relatives of global icon poised for a head-to-head with Nelson Mandela Foundation
The scene is set for a fight over the valuable Mandela brand that could see relatives of global icon Nelson Mandela going head-to-head with the foundation that bears his name.
Several of the ailing former president’s children and grandchildren have recently launched business ventures that trade on the powerful Mandela name.
Mandela’s former attorney, Ismail Ayob, told City Press that the rights to the name rested with company Tinancier Investments.
The company, Ayob said, obtained these rights through a contract signed with Mandela in 2001 – and the lawyer claims it remains valid.
Mandela’s contract with Tinancier was at the heart of a bruising 2005 court battle between the former president and Ayob over handprints and other artworks sold by Ayob and art dealer Ross Calder.
At the time, Mandela said he had been duped into signing the contract, but Ayob now claims the contract’s legality was never settled in the earlier court case.
Tinancier’s two directors are now the two Mandela daughters leading the latest legal charge, and the company remains in business.
Ayob is representing the Mandela daughters and grandchildren in their bid to remove human rights attorney George Bizos, Human Settlements Minister Tokyo Sexwale, attorney Bally Chuene and Eastern Cape Judge Temba Sangoni from the two companies that traded in Mandela artworks.
“They (Bizos, Chuene and others) hijacked (the companies) and ignored Tinancier because it was just a shelf company, but they didn’t know that it actually was the one that held the rights (to the Mandela name),” claimed Ayob.
But the Nelson Mandela Foundation holds 66 Mandela-related trademarks, including “Nelson Mandela”, “Mandela” and “Madiba”.
Companies and Intellectual Property Commission records show the foundation has wide-ranging rights over the term “Nelson Mandela”, including for jewellery and medals, stationery, leatherware, furniture, retail, financial services, education, and even scientific and computer equipment.
The foundation also owns registered trademarks on the name of the Nelson Mandela Metropolitan Municipality, the plush Nelson Mandela Square shopping mall in Sandton, Johannesburg, and several names relating to its own work.
An informed source told City Press the foundation also considered itself the custodian of Mandela’s full name, Nelson Rolihlahla Mandela.
Makaziwe Mandela, one of the daughters leading a pending legal battle over control of companies that received millions from the sale of Mandela paintings, terminated the call when approached for comment on Friday.
Attempts to get comment from Zenani Dlamini, another daughter who is now ambassador to Argentina, were fruitless.
Online company records show that Mandela’s grandson Zondwa – a fellow director with President Jacob Zuma’s nephew Khulubuse in the doomed Aurora mine empowerment venture – registered two Mandela-related companies on October 30 last year.
These are Mandela Is and Mandela 95th Birthday. Zondwa Mandela did not respond to questions about these companies.
The Nelson Mandela Foundation’s Sello Hatang said the aim of the institution’s trademarks “could not be to prevent any member of the Mandela family from using his or her name for their own initiatives”.
He did not respond to a request for further clarification.
Professor Owen Dean, the intellectual property chair at Stellenbosch University’s law faculty, said for a trademark comprising an individual’s name to be registered, that individual must provide consent.
“It can therefore be assumed that Nelson Mandela agreed to the marks being registered in the name of the trust. Those registrations must therefore be assumed to be valid,” Dean said.
“Conflicting marks (basically substantially similar) cannot be registered or used by any other parties.
“Accordingly, with or without Nelson Mandela’s consent, (Tinancier) cannot use or register marks comprising (Mandela’s) name or referring to him.”
He said Tinancier would not have a “leg to stand on” unless it could cancel the foundation’s trademarks.