How to tell a take-off from a rip-off : trade mark parody and freedom of expression in South Africa : notes and comments

Abstract

The recent Constitutional Court decision in Laugh it Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International presented the South African judiciary with a unique and novel challenge. This challenge involved the intersection between the constitutional right to freedom of expression, as provided for in s 16 of the Constitution of the Republic of South Africa, 1996 and the protection of intellectual property rights in terms of s 34(1)(c) of the Trade Mark Act 194 of 1993. The case highlighted the legal consequences of and issues relating to a phenomenon which has received little, if any, attention in our courts: trade mark parody.