It’s about free speech, beer and trademarks - Where constitutional law hurts the zamalek
by ccSA volunteer, Chris Bester
The South African Constitutional Court handed down its judgment in the LIO matter on Friday 27 May 2005. In a unanimous judgment, the court agreed with LIO’s submission that South African Breweries had not shown that LIO’s parodying of its “Black Label” trademark was likely to have caused economic harm to the brewer’s sales of black label beer. SAB had argued that it was not necessary to show actual harm, but only a likelihood of a loss of sales. The court held that the test proposed by SAB was not in line with the demands of section 16 of the Constitution which guarantees the right to freedom of expression. If SAB’s contention was to be accepted, it would place undue importance on the rights of trademark holders at the expense of a vibrant robust democracy that recognizes the right to freedom of expression. Having reached this conclusion, it was not necessary for the court to engage in an evaluation of the expressive value embodied in LIO’s parody of the “Black Label” trademark. The court did however indicate that all forms of expression, except for the limited category of speech excluded by section 16(2) of the Constitution enjoyed protection. Since LIO’s parody did not fall under this class, it clearly enjoyed constitutional protection.
The outcome of the case finally signals the death knell to those intellectual property lawyers who have regarded their subject as immune from Constitutional attack.
