[Commons-Law] Landmark case from South Africa

[Lawrence Liang]

Hi all

I was in Joburg for a few days, and had a chance to follow a very
interesting case that was decided by the constitutional court in SA. This is
the first IP case of this kind to reach the constitutional court. A media
activist group "Laugh it off" had created a parody of Black label beer, a
popular brand in SA with a series of t shirts stating "Black labour: White
Guilt", and they were of course sued by Black Label for dilution and
disparaging use. 

You can see the label here http://www.laughitoff.co.za/


Full story of case

http://www.finance24.com/articles/default/display_article.asp?Nav=ns&Article
ID=1518-24_1712289


The court held in favour of Laugh it off. In a concurring judgment, Justice
Albie Sachs, said: "The evidence indicates that everybody concerned with the
t-shirts, whether producer or consumer, knew that they were intended to poke
fun at the dominance exercised by brand names in our social and cultural
life."  He said the over-zealous application of the trademark law could have
a detrimental effect on the free circulation of ideas.

Justice Moseneke said SAB had failed to show a real or even probable
likelihood that the t-shirts had economically harmed the Carling Black Label
brand.  

While this is an interesting and highly significant decision, a troubling
question of course  would be the logical extension of Justice Moseneke's
statement. Would it then mean that if you could show a real or even probable
likelihood, then the question of free speech will be rendered irrelevant?


Lawrence