Laugh It Off back in court over SAB trademark

T-shirt company Laugh It Off argued on Tuesday in the Constitutional Court in Johannesburg that its caricature of the Carling Black Label trademark caused no economic harm to Sabmark International, which holds the trademark and licenses it to South African Breweries (SAB).

Laugh It Off is applying for leave to appeal against a Supreme Court of Appeal finding in September last year that it was illegal for the T-shirt company to use a caricature of an SAB trademark.

The Supreme Court of Appeal found the use on a Laugh It Off T-shirt of the phrase “Black Labour, White Guilt” violated SAB’s “Black Label, Carling Beer” logo.

Advocate Peter Hodes, on behalf of Laugh It Off, on Tuesday argued that if the T-shirt company caused no economic harm to SAB, there is no case.

However, if the court should decide harm was caused, then Laugh It Off was indulging in parody, which is protected by the constitutional right to free speech.

The Freedom of Expression Institute (FXI), appearing as amicus curiae (a friend of the court), argued in favour of Laugh It Off.

Advocate Gilbert Marcus, on behalf of FXI, said the Trademark Act confers a virtual monopoly in the trademark owner.

As trademarks enjoy such massive protection, they should not be able to exercise those rights in a way that stifles social commentary.

Therefore, he said, the court has to balance the rights given to trademarks and those of free speech.—Sapa



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