Chris Bester, our resident legal expert, has written an excellent commentary on the LIO judgement. There are definitely a host of different opinions on the judgement – a great one from the freedom of expression perspective comes from Carmel Rickard on the Sunday Times online.

‘The legal battle between South African Breweries (SAB) and Laugh-it-Off Promotions (LIO) has captivated the imagination of lawyers and student of popular culture alike. Never before has a South African Court been confronted with the question of how far the constitutional guarantee of freedom of expression challenges intellectual property rights. In the Supreme Court of Appeal’s judgment handed down on 16 September, the issue was whether the Cape High Court (decision accessible from ) was correct in handing down an interdict preventing LIO from parodying SAB’s “Black Label trademark” on its T-shirts. The Court confirmed the decision of the Cape High Court and found LIO’s reliance on parody and freedom of expression as defenses to trademark dilution to be misconceived.

The Court made it clear that the commercial use of another’s well-known trademark established over a period of time involving great expenditure where such use is to the detriment of the trademark owner’s reputation, amounts to dilution of the trademark and accordingly justifies an interdict. If the outcome of the case is viewed in the context of the perceived use of intellectual property rights by large multi-national corporations in suppressing freedom of expression and social commentary, the conclusion may well be reached that intellectual property rights are immune from constitutional attack. While this may be so on face value, a careful reading of the judgment shows the contrary. Not only did the Court acknowledge the growing concern that trademark protection is not always kept within its proper boundaries, but in two sentences, forever destroyed the notion that intellectual property law is immune from constitutional scrutiny. Although the judgment dealt with trademark dilution, the Court’s remarks in this regard have equal bearing on copyright law, especially in so far as its application on the Internet is concerned where the enclosure of information previously in the pubic domain is becoming more contentious. In future, the holders of intellectual property rights will have to show that the enforcement of their rights is constitutionally justifiable.

It is difficult to determine what reverberating effect the judgment will have, but there is little doubt that South African Courts will be more circumspect in granting holders of intellectual property rights blanket protection when confronted with a defense of freedom of expression. Where the form of expression is commercial in nature as was the case with LIO, a Court will not be easily persuaded to grant the form of expression full protection since commercial speech occupies a subordinate position in our hierarchy of constitutional values. However, it is highly conceivable that use of another’s trademark will not amount to infringement where the form of expression was not commercial in nature. For this reason, a Court will not easily come to the same conclusion as in the SAB/LIO matter if the Treatment Action Campaign for instance, makes use of a giant pharmaceutical’s trademark in conveying its criticism of the pharmaceutical’s Aids drug policy. A Court may similarly sympathize with the proprietors of the Hellkom website and be loathe in enforcing Telkom’s trademark where the use of Telkom’s trademark amounts to non-commercial speech and is not in the course of trade.

As for LIO, the decision does not necessarily mean the end of their road. They may well decide to take the matter to the Constitutional Court, but here, the issue will revolve around whether the Supreme Court of Appeal showed sufficient deference to their right to freedom of expression. On the facts of the matter, it seems unlikely the eleven judges of the Constitutional Court will arrive at a different decision as their colleagues in the Supreme Court of Appeal.’

And more from Justin Nurse in a Star article:
“We sell social commentary – we don’t sell T-shirts. If it was about T-shirts, we would not have taken it this far. The judgment gave no recognition to that. It is very disheartening.

What do you think? Should the ‘commercial use’ clause be used against freedom of expression? Do you think we should be allowed to say what we want, as long as we’re not making a business out of it?