We’re back again good people! Its the first #IPThursday of 2021. This probably one of the the most frustrating stories to come out of post 94 South Africa. Its the story of The Apartheid Museum.

Lets start this one with a little history lesson shall we? As far back as 1948. The minority white South African government introduced the Apartheid regime. It was one of the most racist, inhumane and corrupt systems to ever exist.

I’m sure we all know what it entailed, so I won’t go deeeep into the triggering specifics. If you don’t, you should probably sue your history teacher.

In short, it was a system of segregation based on race. The word literally translates to “apartness” but those who lived through it will tell you it went beyond that.

This wasn’t your usual colonialism. It was like a cancer which infected every single thing you did, from where you sit at the park, to where you were allowed to buy a house. Just read up on the Group Areas Act and other laws from that time.

Well, Apartheid ended officially in 1994 when Mandela became president, but It was probably doomed to end from as early as the 1970s.

So, how does all this fit into an Intellectual Property story you may ask? Well some years before it ended, a man called Michael Stainbank “Bra Mike” was already planning its memorial.

Bra Mike, who was also fascinated by the Black Consciousness Movement and Steve Biko, came up with the idea of an Apartheid Museum. His idea was to preserve history after the system had ended, people like me and tourists, who never lived through it could go see what it was like.

In 1990, he applied to register a trade mark for THE APARTHEID MUSEUM. However, getting approvals and backing was tough so he did not open the museum. So in 1998, he re-filed a new trade mark application for THE APARTHEID MUSEUM.

This is where our story takes a left. During this time, Staibank claims that he pitched the idea of the museum to various people in government, including Ace Magashule.

Even the president at the time, Nelson Mandela, received it and referred him to the relevant ministry. Mandela thought it would good for national building. I don’t think you’d feel like nation building after a visit to the museum.

At the same time, a few businessmen in Joburg were working on an idea called “Freedom Park”. These guys included businessmen known as Solly and Abe Krok, known as the Krok Twins.

Sidenote: Am I the only ones that thinks adults shouldn’t be twins? Idk, but after 21, being a twin is childish.

Anyways, I say controversial because the Krok Brothers made millions during the apartheid years selling skin lightening creams to black people. They even had a tagline, “whiter is better”. So they have a history of exploiting black pain (this will be NB later)

Anyways, the Krok Brothers are actually popular for something else, they are the owners of Gold Reef City and Casino in Johannesburg. You know that big amusement park that’s likely to leave you dizzy or screaming like a child. Mike’s proposal somehow found its way to these guys.

In 2001, the Krok Brothers opened their own Museum, The South African Apartheid Museum at Freedom Park. It is next to Gold Reef City and if you’ve never been there, its definitely triggering. I went there once a few years back and its only a glimpse into the cruelty of the system

There were many problems with this and I’ll start with the obvious one. The Apartheid Museum is the exact same trade mark Stainbank had registered. And funny enough, the concept is also similar to his.

The Krok Brothers claimed that they were inspired by the Holocaust museums in the US, something Bra Mike has called a big lie.

He felt that the Krok brothers had stolen his idea and infringed on his trade mark. So he did what any IP owner would do, and in 2003 he went straight to court and applied for an interdict to stop the Krok Brothers, through their company Gold Reef City to stop them from trading.

He went to court but Gold Reef City fought back, they counter sued to expungement of Bra Mike’s trade mark based on non-use.

If you’ve been following #IPThursday you’d now that if you don’t use your trade mark for 5 years, then it becomes vulnerable and can be cancelled for non-use and that’s what happened here.

Stainbank had been frustrated by various government officials throughout the 90s and so he had not opened his museum, and technically, had not used his trade mark.

Although Bra Mike had prepared proposals and brochures, Judge Southwood said he had not used the trade mark commercially. He also said that the idea of an apartheid museum was not original and so it could not have been stolen. His judgement is unreported (more on this later)

Bra Mike was understandably upset. He felt there was enough proof that the execs at Gold Reef City, who surprisingly included Dr John Kani, had stolen his idea.

The plot thickens....what made it worse is that Judge Southwood used to be represent the Krok Brothers whilst he was still an advocate. So Bra Mike also felt the judiciary was as corrupt as the politicians who betrayed him. This is why I probably wont go into litigation.

One of the frustrations with this is that it seems strange that two white guys, who made money exploiting black people, are allowed to open an apartheid museum by the government.

It is basically, the oppressor making money from the pain of black people...whilst the government let it happen.

Bra Mike wanted another proper day in court and he eventually got it in 2015.

This time around, the matter was to be heard by Judge Willis on Appeal. Gold Reef City also applied, amongst other things, to officially have Staibank’s trade mark expunged on the basis that the term “The Apartheid Museum” is not distinctive and does not qualify as a trade mark.

So the judge to considered the following issues:
• Is there any issue with white men, given their history, opening an apartheid mueum?
• Was Stainbank’s idea of an apartheid museum original and protected by IP?
• Is the trade mark “The Apartheid Museum” distinctive?

The last point was the most important really, if the term “The Apartheid Museum” qualified as a trade mark, then he could win a case for trade mark infringement. If not, then he could not prevent other people from using it.

The judge struck out the first two points in the first few paragraphs. He said the idea of a museum is not original or unique. It has been done almost everywhere in the world when a regime falls.

The judge also said that no one owns the rights to apartheid, regardless of their race or reputation, anyone can open an apartheid museum. There is nothing preventing Mike from doing the same.....I, personally have huge issues with this.

The judge then turned to the last point, is the trade mark “The Apartheid Museum” distinctive? The answer was also No. The judge said the trade mark is descriptive of the services being offered and must be removed from the register.

Bra Mike lost the case again and lost the trade mark. Legally, the judge was probably correct on the trade mark bit. The trade mark is descriptive and rule number of trade mark law is that you must stay away from descriptive or generic words as marks.

This is clear under section 10(2) of the Act. The concept is also not new or original.

However, in as much as the judgment is correct from a Trade Mark law perspective, everything about this feels very unjust. Ultimately, you have a government thats betrayed one of its citizens and businessmen who’ve stolen his dream.

Perhaps if he made the people he presented the idea to sign NDAs, he could have a breach of contract claim if they disclosed to other people. However, the trade mark itself is unfortunately descriptive.

There is only so much I can condense into a thread, so if you’re interested hear from the man himself through his interview with the Inside Factor.

There are a few big lessons here. The first is trust no one with your ideas. You never know when they could run with it. Secondly, avoid using descriptive terms as trade marks as much as you can. I know its hard, almost unnatural, but try!

Pardon my typos .