He who laughs last... has a beery breath
by Sean O'Toole
The highly publicised court battle between satirical T-shirt company Laugh It Off (LIO) and international brewing firm SAB Miller recently came to a head with the Cape High Court ruling in favour of the brewing giant SAB Miller.
The hearing, before Justice Roger Cleaver, revolved around a T-shirt marketed by LIO, bearing an illustration of the Black Label trademark logo, with the words "Black Labour - White Guilt", and "Africa's lusty lively exploitation since 1652, no regard given worldwide".
SAB Miller contended that LIO's conduct took unfair advantage of, or was detrimental to, the distinctive character and reputation of Black Label trademarks. LIO in their defence countered by arguing that the T-shirt was not unlawful, but rather a lawful exercise of the right to freedom of speech. (Or in the lexicon of anti-corporate speak, an example of culture jamming.)
In his ruling Justice Cleaver found that, despite a lack of evidence demonstrating that the T-shirts harmed SAB Miller, that "tarnishment" was likely to occur. His judgement concluded that such use exceeded the limits of freedom of speech and expression.
In coming to his conclusion Justice Cleaver made the following comments, that:
a) the Black Labour T-shirt exploits SAB Miller unfairly, and for commercial gain;
b) no-one would buy LIO's T-shirts if they didn't use SAB's trademark;
c) the Black Labour T-shirt is merely a lampoon of SAB's trademarks and not a broader social commentary. It doesn't talk about South African society in general, but rather just about SAB;
d) an acceptable parody must be a harmless, clean pun. LIO's lampooning was not considered a harmless clean pun, introducing the race factor, something which the constitution and new democracy are at pains to avoid; and
e)the Black Labour T-shirt can be said to border on hate speech.
The ruling effectively restrains LIO from using any SAB trademarks on their T-shirts. LIO plan to appeal the judgement, which awarded the hefty costs in favour of SAB.
Commenting on the judgement in his Loose Cannon column, the M&G's Robert Kirby stated: "The SAB/LIO judgement sets a troubling precedent, seeming to endorse a line taken over the past ten or so years by South African high courts, which is both to punish and outlaw critical comment of large and usually wealthy organisations, political parties and the like.
"Cleaver's findings will further provide these with a shield behind which they may hinder and obstruct even nominal criticism of themselves, their products or their prejudices."
Kirby's comments are borne out by recent developments internationally, where anti-corporate activists are slowly being reined-in by a variety of legal mechanisms aimed at protecting particular corporate legal interests. For some recent examples, visit:
www.adbusters.org/breaking_news/laugh_it_off2003_01_08.html
