While it is unlikely that any of the judges in the Constitutional Court will be wearing ”Black Labour — White Guilt” T-shirts under their robes on Tuesday, the offending shirt will probably not be far from their minds, as they consider whether it really is a cut-and-dried case of trademark infringement.
Last August, the Supreme Court of Appeal (SCA) in Bloemfontein upheld the global brewing giant SABMiller’s trademark rights against the freedom of expression right asserted by the Laugh It Off company. The matter has now reached the Constitutional Court.
Ironically, the same day as the court case, Laugh It Off’s popular Annual of South African Youth Culture Vol 2 is due to hit the shelves, but readers won’t find reference to the ”Black Labour — White Guilt” parody. The image, which SABMiller found ”racially inflammatory” and ”offensive” has been removed. Reprint costs have left Laugh It off R100 000 in the hole, and adds up, in the words of the founder Justin Nurse, to a ”financial disaster”.
The case is the first of its kind to reach the Constitutional Court, and if it rules in Laugh It Off’s favour, will enable ”artists to say what they want to say and do what they want to do”.
”It’ll be a relief for comedians,” says Nurse.
”We are asking the court to recognise the fact we live in a consumer society and that brands play a huge role. They’re part and parcel of our consciousness on a deeper level.”
Nurse says he expects the Constitutional Court judges to measure the intentions of his company, which use T-shirts as a medium to get their eye-catching messages across.
”They [the shirts] shouldn’t necessarily be seen as a comment on SAB,” says Nurse.
The Constitutional Court will have to decide whether the ruling of the SCA is in breach with the constitutional right to freedom of expression. In other words, they will have to rule whether the right of trade mark protection or the right of expression is stronger.
Laughter is the best medicine
The Freedom of Expression Institute (FXI) is appearing as an amicus curiae (friend of the court).
FXI said in a statement that SABMiller should be able to take some criticism and mockery because the brewery has ”opted to place a particular brand identity with certain images, virtues and values in the public domain”.
”SAB must not enjoy special immunity from the spoofing and criticism that is generated by its own choice of branding,” it said on Monday.
”The words ‘Black Labour — White Guilt’ are a parody and constitute nothing more than the fair use of a registered trademark, which is protected by the constitutional right to freedom of expression.”
”The right to parody is one of the hallmarks of the right to freedom of expression and in order for parody to be exercised effectively, an individual must be able to borrow, copy or imitate an original work, mark or object,” said the statement.
Trade mark protection
”SABMiller is banking on a very recent amendment to the Trade Mark Act [around 1998], Section 34.1.C, which is also known as the anti-dilution division, Helen Burt, a trade mark specialist at Johannesburg law firm Webber Wentzel Bowens, told the Mail & Guardian Online on Monday.
”This relatively new section protects the infringements and dilutions of the well-known trade marks such as SABMiller’s Black Label. It is meant to prevent these marks from being blurred.
”This case is special because never before has section 34.1.C been taken so far into the legal process.”
Burt said she thought that Laugh It Off had taken their right to freedom of expression one step too far.
”Their use of the brand goes beyond parody and humour. The defence of parody is not going to work because the way they used the brand has racist connotations. And especially in South Africa, no company wants to be associated with racism.
”If the public looks at the logo it is very likely for them to think that SABMiller is accused of being a racist company that was one of the bad guys in South Africa’s history.”
”The High Court in Cape Town ruled that the way Laugh it Off used the brand was not parody but that it bordered to hate speech. And thus Laugh it Off crossed the line of freedom of expression.”
”Courts are in general very happy to acknowledge the right of artist to use brands for parody and humor, but I believe that they did not see humor and parody in the Black Labour — White Guilt case.
Burt predicted that if the Constitutional Court ruled in favour of Laugh It Off, it would mean that a lot of companies would probably see their brands being lampooned.
”I put my money on SABMiller, namely because of the racist connotations. If they would have done it in a more humorous way I think there would have been less problems.”