Another legal stand-off between brand parody specialist Laugh It Off and SABMiller has forced the small company to drop a satirical image of Carling Black Label beer to get its calendar and annual on youth culture into stores.
Delays caused by the global brewery’s legal moves to halt publication are extracting heavy costs, said Laugh It Off founder Justin Nurse. By Wednesday evening it appeared that unless Laugh It Off raises R200Â 000, its Annual of South African Youth Culture Vol 2, a collection of unpublished and established creative writers, and Laugh It Off Chronicles would not see the light of day. Last year’s annual was a bestseller, establishing the company’s success.
Printing expenses could double: a section in each of the 9Â 000 annual copies, and its cover, must be reprinted without the image SABMiller described in last month’s interdict application as “racially inflammatory”, “offensive” and in breach of its trademark.
The same image had to be replaced at the last minute in the calendar. This is the settlement reached between the multinational brewing giant and the media company to stave off an interdict.
Legal papers were also served on the printers, co-publishers and Exclusive Books.
It is the latest twist in the court battles that, in August, saw the Supreme Court of Appeal uphold the company’s trademark rights against the freedom of expression right asserted for the company’s “Black Labour — White Guilt” satirical T-shirt, which caused the trouble. The matter is headed to the Constitutional Court in March.
On the back of the success of the first annual, the 2004 book is one of the 55 titles in the Exclusive Book’s Publishers’ Choice.
“Every day the book is not in the stores, sales are lost. Such an approach has the effect of wearing one down,” said Bridget Impey, MD of Double Storey Books, a division of Juta, which was the co-publisher. Double Storey has agreed that, because of increased costs, Laugh It Off would produce the annual itself.
While First National Bank bought 500 “Finest Natural Bankie” T-shirts for staff, Laugh It Off has received 20 threats of litigation from other companies in the past two years.
None but SABMiller proceeded. However, Coca-Cola, several of its product subsidiaries and Ouma Rusks are understood to have followed last month’s SABMiller interdict proceedings with a view to launching their own action. The parody of Coca-Cola reads: “Corruption, you can’t beat the feeling”, while the Ouma rusks brand becomes “Jou ma”. With the legal hawks circling, Laugh It Off has also shut down its website, fearing further lawsuits.
Although Laugh It Off hit notoriety with its T-shirts — using locally made garments as a background for its slogans — it does a range of other things from publishing msanzi (slam) poetry to voter education.
Laugh It Off is asserting its right to mimic brands, not only on T-shirts but also in print, as social commentary. Nurse said brands are fair game because they are part of people’s daily lingo. “The aim is to give a platform to views and voices not easily heard in today’s consumerism; the spoof is not necessarily a comment on the brand, but on broader social issues.”
SABMiller, which registered the Carling Black Label trademark in The Netherlands, disagrees. The company argues in its court papers that it spent R35-million this year marketing the brand. Its London-based spokesperson, Adrian Botha, said the legal action was to protect the trademark and brand. “[Nurse] is abusing the trademark for gain. This is not about corporate bullying.”
He added: “How could we have forced the judiciary? The highest court of our land has ruled [Nurse] is in contravention of the law … It’s like a person walking into a store and helping himself.”
But Simon Kimani Ndungu, head of the Anti-Censorship Programme at the Freedom of Expression Institute (FXI), disagrees. “All SABMiller is doing is flexing its muscle … It essentially says ‘don’t take on the big giants’ — this as we celebrate 10 years of democracy. Parody and cartoons are merely aspects of freedom of expression.”
The FXI will again appear as a friend of the court when the next round of the David and Goliath battle is heard in the Constitutional Court.