The Constitutional Court upheld intellectual property law in its recent judgement in the matter between SABMiller and T-shirt-maker Laugh It Off, law firm Spoor & Fisher said on Monday.
Spoor & Fisher partner Dr Owen Dean said the judgement is important because it harks back to a 1996 decision not to include intellectual property (IP) rights, including trademark rights, in the Bill of Rights — as is the case in many other countries.
”This decision came in for criticism in IP law circles as it was felt that IP rights should be placed on an equal footing with other fundamental rights granted recognition in the Bill of Rights, such as the rights of privacy and freedom of expression,” Dean said.
It was felt that if a conflict develops between an IP right and one of these recognised fundamental rights, the fact that IP rights do not enjoy parity with these other rights in the Constitution could lead to them being considered subservient to such other rights.
”The effect of the recent judgement in the SABMiller v Laugh It Off case is indeed to grant the right of freedom of expression precedence over the rights of the proprietor of a registered trademark.
”At first blush, it would seem as though the fears expressed in 1996 in the IP community have materialised.
”However, a close analysis of the court’s judgement in the Laugh It Off matter shows that, in addressing the question of the conflict between SABMiller’s IP rights and Laugh It Off’s right of freedom of expression, the court in principle gave the two rights equal stature, but found on the facts of the matter as presented to the court that Laugh It Off’s right of freedom of expression should prevail,” Dean said.
”While this conclusion is likely to be debated for some time, it is a cause of some comfort to see that the court departed from the standpoint that the two rights in principle enjoy equal status and that the intellectual property right was not an inferior one simply by reason of it not being specified in the Bill of Rights as a fundamental right.
”This marks an important, albeit belated, recognition of the status of IP rights,” Dean said.
On Friday, the court found that SABMiller had not proved that Laugh It Off had infringed on the brewery’s trademark with a message on its T-shirts.
Laugh It Off had substituted the words ”America’s lusty, lively beer, Carling Black Label beer, enjoyed by men around the world” with ”Black Labour, White Guilt, Africa’s lusty lively exploitation since 1652, no regard given worldwide”. — Sapa