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South African Brewery Wins Trademark Lawsuit Against T-Shirt Satirist - 2003-04-16

South Africa's largest beer maker has won a landmark court case against a small Cape Town T-shirt company for trademark violation, over a shirt satirizing one of its beer labels. Free speech advocates are calling the decision a serious blow to freedom of expression in South Africa.

Cape High Court Judge Roger Cleaver ruled that the T-shirt, made by a Cape Town company called Laugh It Off, exploits the trademark of beer brewing giant SABMiller and borders on hate speech.

The T-shirt in question lampoons the company's Black Label brand of beer. In lettering that matches the beer's logo, the T-shirt says "Black Labour - White Guilt."

SABMiller says the shirt violated its trademark and damaged the company's reputation by implying that it has racist labor practices. Laugh It Off argued its satirical artwork was protected by free speech guarantees in South Africa's constitution.

Judge Cleaver agreed with the brewery. He said the T-shirt borders on hate speech because of its racial content. And he barred the T-shirt makers from using any of the beer company's trademarks.

Laugh It Off owner Justin Nurse told VOA he is plans to appeal the court decision. "Laugh It Off wants to continue to challenge society in thought-provoking, unconventional ways," said Mr. Nurse. "It is making a statement through a T-shirt, or ways that people are not used to. And the judge has not really grasped that. ... We would say obviously our T-shirt is not hate speech, and that if one guy can not see it, then obviously we have to take it further to the constitutional court."

Free speech advocates say the ruling sets a terrible precedent for freedom of expression in South Africa. The tiny T-shirt company was even ordered to pay legal costs for the multi-billion dollar brewer.

SABMiller spokesman Adrian Botha said the company's main goal was protecting its trademark, which is why it did not seek any damages.

"Clearly we are under an obligation to our shareholders, our employees, and everyone else who is dependent on the company's success to defend that trademark," said Mr. Botha. "So that was really the main issue. There was obviously a side issue as well, in that we believed that the context in which the trademark was in fact used was disparaging, and objectionable really, particularly in South Africa. Although anywhere else in the world it would have been probably much the same."

The case has gotten a significant amount of media attention in South Africa precisely because of racial sensitivities in the post-apartheid era. It has also been portrayed as a David vs. Goliath scenario, with big business trying to trample on the rights of a small-scale entrepreneur.

Mr. Botha says the critics fail to understand that "trademarks are the lifeblood of any company," and SABMiller was obliged to defend its trademark.

But public support for his cause is one reason Justin Nurse feels his appeal will succeed. He says he is particularly outraged by the judge's assertion that his T-shirt borders on hate speech.

"If you think about it ... the implication of that is anything which talks about South Africa's racist past is unacceptable in our new democracy. It is basically saying that you can not bring up anything that has happened in the past because that is hate speech," said Mr. Nurse.

Laugh It Off sells a whole range of T-shirts lampooning popular brand-names. Other targets have included the Coca-Cola company, Lego-brand toys, McDonalds, and Kentucky Fried Chicken. Other companies have filed suits against the T-shirt maker before, but SABMiller is the first one to actually follow through and take the matter to court.

SABMiller is the world's second largest brewer of beer and one of the world's biggest soft drink bottlers. The company was known as South African Breweries until last year, when it took over the U.S.-based Miller Brewing Company.

The whole case is largely academic now. Shortly before the judge ruled, Laugh It Off announced it was stopping production of the Black Labour T-Shirt. Mr. Nurse says the company thinks it has made its point.