Billionaire businessman Mark Shuttleworth has offered to pay for the costs of satirical T-shirt-maker Laugh It Off’s Constitutional Court action, founder Justin Nurse told the Cape Town Press Club on Thursday.
His T-shirts have ripped off such business institutions as Standard Bank, First National Bank and brand advertising like Black Label — produced by South African Breweries (SAB).
Nurse told his audience that he is ”flat broke” after several projects of his company were derailed.
After he had replaced the words ”Black Label, Carling Beer” with ”Black Labour, White Guilt” on his Laugh It Off T-shirts, the Cape High Court ruled in April 2003 that his logo infringed SAB’s trademark and it bordered on racism and hate speech.
The Constitutional Court now has to decide whether the T-shirts are an infringement of SAB’s Carling Black Label trademark or whether Laugh It Off is protected by the constitutional right to freedom of expression.
Nurse said the lodging of court documents to the Constitutional Court cost him about R30 000, but this was covered by T-shirt sales.
Fortunately, senior counsel Peter Hodes offered to argue his case in the Constitutional Court pro bono, because Nurse ”knows his [Hodes’s] daughter well”, as they attended Rhodes University together.
However, a print run of a calendar for 2005 had been delayed by the insistence of SAB that pictures taken by photographer Obie Oberholzer be removed. As a result of a print rerun, the project had lost Laugh It Off about R100 000. The calendar had ultimately hit the shelves only in January — too late to sell effectively.
After the court ruled against him last year, Nurse retreated on a two-month holiday to South America to recover, but admitted that he could hardly afford to put the petrol in his car to make the Press Club lunch function.
The 27-year-old said the action by SAB had stripped him of ”any naivety” that he may have had as a student. His appearance at the Constitutional Court had ”kind of scared the hell out of me” — whether he was guilty or not, ”it had that effect on me”, he said.
But he said he is optimistic that the Constitutional Court will view the matter differently to the High Court.
If he wins the action — with judgement expected soon — he surmises that the court will link the issue of trademark protection with whether his lampooning T-shirts and logos deleteriously affect the businesses of the trademark holders.
He said success will be measured by the extent to which Laugh It Off’s products test the boundary between trademark law and freedom of speech.
He believes that his products poke fun at the advertising message associated with the products and cause the public to take a second look at the message. The result of this is, in fact, that the original advertising message is reinforced.
Asked how he would feel about losing the Constitutional Court action, Nurse said he would try to look at it philosophically — although it would be hard to go through life seen ”as a loser”.
He would focus on the hope that the next court battle would change the law to allow the lampooning to take place.
Pressed if he would consider lampooning political-party advertising, he said that is a battle into which he has opted not to enter. He has also been asked to lampoon the development of a pebble-bed modular nuclear reactor expected to be built at Koeberg, but has decided also not to enter this territory.
One of the members of the audience, National Assembly chairperson Sandra Botha offered to wear one of his T-shirts at a sitting of the Assembly. — Sapa