The hand gesture of the “raised fist” is a gesture often used by groups of peoples as a symbol of solidarity against a common oppressor. One of its first uses was as a symbol of camaraderie in the fight against the fascist regime of General Franco during the Spanish civil war. Since then it has been popular with civil rights groups and revolutionary figures such as Nelson Mandela and Winnie Madikizela-Mandela. The image of Nelson and Winnie Mandela walking hand-in-hand, raising their fists in solidarity against oppression on the day of Nelson Mandela’s release from Robben Island is indeed an image burnt into South Africa’s national conscience.

This hand gesture was used extensively by Madikizela-Mandela and has become associated with her as part of her persona. But could she have monopolised this gesture in a commercial sense by trade-marking it? Could any revolutionary-cum-budding-entrepreneur trade mark this gesture?

To register a hand gesture as a trade mark is possible in theory.

A trade mark must, however, conform to the definition of a trade mark in that it must be capable of distinguishing the goods or services of one trader from the same goods or services of another trader. The trade mark must be distinctive enough to allow consumers to differentiate one trader’s goods or services from those of another and it must be used to market and sell goods.

The raised fist gesture was not invented by Mama Winnie. Moreover, it has been used as a logo by many groups such as the second wave feminist movement in the 1960’s which placed the raised fist in the Venus symbol, the Aryan Fist used by white supremacist groups, and by a Serbian political organisation named Otpor! to name a few. As this symbol has become a world-wide well known symbol used to represent solidarity in resistance, no one group can claim trade mark rights in this symbol and thereby exclude others from using it. The concept behind the symbol and the actual hand gesture cannot therefore be monopolised as a trade mark.

However, should the revolutionary-cum-budding-t-shirt-designer, design a logo incorporating the raised fist, which is different to all other logos incorporating this fist, there should be no reason that the specific logo itself cannot be registered as a trade mark. This trade mark must though be capable of distinguishing her t-shirts and her brand from the t-shirts of another trader.

Alas for Mama Winnie who, although she used this gesture extensively, would unfortunately not be able to prevent others from using it too.

This article was first published in the Business Day.