Legal view on banning red berets
Politics is not religion and we should govern on the basis of evidence, not theology. Let’s start with the governing law. Section 160 of the UPDF Act 2005 states that “The minister shall, by notice publish in the Gazette, declare and make known what mark or marks when applied to any arms, clothing, equipment, vehicle, aircraft or boat shall denote them as property of the State”.
To interpret this statement, declare and make known what mark or marks we are talking about. The offence is committed under Section 160(1) of the Act. “Any person who with fraudulent intent applies to any arms, clothing, equipment, vehicle, aircraft or boat any mark referred to commits the offence.
The red berets used by especially People Power movement is not a mark within the meaning of Section 160. The violations is when you get mark declared and apply it on beret.(or any clothing). To the best of my knowledge, People Power’s red beret has a symbol of the map of Uganda and black fist. Unless the government has gazatted “map of Uganda with black fist,” there is no problem with red berets used by People Power movement.
Now, I turn to red colour of the berets. If I am to wear my intellectual property law hat, one cannot monopolise colour, be it a company or government. According to a number of rulings by the Court of Justice of the European Union (CJEU), it is necessary to prevent certain colours from being monopolised by companies, for reasons of general interest and free competition. However, a colour or combination of colours can be registered as a trademark when it acquires distinctiveness. Practice shows that colour can only obtain trade mark protection when it has acquired distinctiveness.
The CJEU’s recent judgment emphasises once again that colour marks do not easily meet the condition of distinctiveness, and that a well considered strategy must be used to acquire distinctiveness for the goods and services applied for.
The CJEU ruled in the Libertel judgment that a single colour can be registered as a trademark, provided that it can be displayed graphically in a clear and precise manner. This last condition will not be fulfilled by simply reproducing the colour on paper.
It will be disturbing for government of Uganda to monopolise red colour as used by Power Power supporters. There is nothing showing that the People Power movement cannot use red berets. We can build a better Uganda.
Elmer Davis said it is better: “The first and greatest commandment is, don’t let them scare you”.
Marvin Kushaba,
[email protected]
