On 27 May 2005 the Constitutional Court of South Africa handed down judgment in the case of
Laugh It Off Promotions CC v South African Breweries International (Finance) B.V. T/A Sabmark International.
The judgment is significant since it is the South African Constitutional Court's first foray into the freedom of expression issues raised by parody and satire. It also affirms that no area of South African law remains sealed off from the Constitution and its values.
The case arose from a conflict between South African Breweries and Laugh It Off CC (LIO), a tiny operation run by social commentator Justin Nurse.
SAB is owned by SABMiller, a multibillion dollar multinational, which will be known to US readers as manufacturers of Miller Genuine Draft, and Miller Lite, and to South Africans as manufacturers of Castle Lager.
LIO engages in culture jamming by producing an annual, calendars and T shirts lampooning well known logo’s for example ‘Unlucky Fried Kitten’. One of these T shirts bears a label:
that lampoons the labels and marketing of SAB’s Black Label Beer:
The LIO design says: Black Labour, the legend at the top stating “Africa’s lusty lively exploitation since 1652” where the SAB label says Black Label and the legend states "America’s lusty lively beer".
SAB applied to the Cape High Court for an order preventing LIO from selling the T shirts, on the basis that selling the T shirts violates South Africa’s anti-dilution provision, section 34 of the Trademark Act 194 of 1993. LIO appealed to the Supreme Court of Appeal which upheld the order, so LIO appealed again to the Constitutional Court. The Constitutional Court held that the anti-dilution provision has to read through the prism of the Constitution, more explicitly the right to freedom of expression set out in the Bill of Rights. The provision then requires that claimant “establish a likelihood of substantial economic detriment to the claimant’s mark.” However SAB had not alleged any basis for this, simply maintaining that it was self evident.
LIO won its appeal to the Constitutional Court, and the freedom to sell the T shirts.