## Facts

- Laugh It Off Promotions CC, a small clothing business, sold T-shirts that parodied well-known trademarks for profit and social commentary.
- South African Breweries International (Finance) B.V. (Sabmark) owned and controlled the well-known Carling Black Label beer trademarks and trade dress in South Africa.
- Laugh It Off produced a T-shirt closely imitating the Carling Black Label label “get-up,” but substituted critical phrases, including “Black Labour” for “Black Label” and “White Guilt” for “Carling Beer,” along with text condemning “exploitation since 1652.”
- Sabmark sued under § 34(1)(c) of the Trade Marks Act 194 of 1993, an anti-dilution provision protecting well-known marks against uses likely to take unfair advantage of, or be detrimental to, the mark’s distinctive character or repute, even without consumer confusion.
- Laugh It Off argued the design was satire and political/social criticism protected by the constitutional right to freedom of expression (Constitution § 16(1)).
- The High Court granted a final interdict barring the T-shirt; the Supreme Court of Appeal upheld infringement (with amended interdict language).
- Laugh It Off sought leave to appeal to the Constitutional Court, supported by an amicus focused on freedom of expression.

## Issues

1. What must a trademark owner prove to establish “likely” detriment to repute or unfair advantage under § 34(1)(c) for a well-known mark?
2. How should § 34(1)(c) be interpreted and applied in light of the constitutional protection of freedom of expression, including parody and political commentary?
3. On the record, did Sabmark prove a likelihood of commercially material harm sufficient to justify an interdict against the parody T-shirts?

## Decision

- The Constitutional Court granted leave to appeal and unanimously allowed the appeal.
- The Court set aside the interdict issued by the High Court and confirmed (as amended) by the Supreme Court of Appeal.
- The Court held Sabmark did not discharge its burden to show that the parody was likely to cause substantial, commercially relevant detriment to the mark’s repute (or constitute actionable unfair advantage) under § 34(1)(c).
- Applying the statute consistently with freedom of expression, the Court declined to infer dilution from offensiveness or ridicule alone.

## Legal Principles

- Anti-dilution liability under § 34(1)(c) requires proof, by the trademark proprietor, of a likelihood of real, commercially significant detriment to the mark’s distinctive character or repute (or a likelihood of unfair advantage); speculation and subjective offense are insufficient.
- Courts should not presume that parody, mockery, or reputational “tarnish” automatically produces economic harm; the inquiry must be evidence-based.
- Trade mark legislation must be interpreted, where reasonably possible, in a manner consistent with constitutional freedom of expression, particularly for satire, parody, and political or cultural commentary.
- Trademark rights are not a general right to stop unflattering speech about a brand; expressive uses may be protected absent demonstrated, material harm meeting the statutory threshold.

## Conclusion

The Constitutional Court vacated an injunction against parody T-shirts using a famous beer label’s trade dress, holding that dilution under § 34(1)(c) demands evidence of likely, commercially meaningful detriment and must be applied consistently with constitutional protection for satire and political expression.


Laugh It Off Promotions CC v. S. Afr. Breweries Int’l (Fin.) B.V. (CC) 2006 (1) SA 144 (S. Afr. 2005)