Free Speech Victory in South Africa

The Constitutional Court of South Africa has held, in Laugh it Off v South Affican Breweries, that parodic (some may use other terms..) use of trade marks on T-shirts was not trade mark infringement (on the basis of dilution). It was held that for trade mark infringement there must be economic harm, which was not established. In any event, the court was very clearly of the view that the interests of free speech were of greater importance that the interests of the trade mark owner and that trade mark law should be approached on this basis.

The decision of the lower court (the Supreme Court)had gone the other way, with the court considering that "abuse" of another through using its trade mark could not seek the protection of free speech. The latest decision, a ringing endorsement of the pre-eminence of free speech over more commercial interests is likely to be watched with interest throughout the world