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Thus, the fact that lampoons appear on t-shirts to be worn by young irreverent people who enjoy the idea of being gadflies, could be highly relevant.
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Whatever our individual sensibilities or personal opinions about the t-shirts might be, we are obliged to interpret the law in a manner which protects the right of bodies such as laugh it off to advance subversive humour.
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As it is often said the mark sells the goods and therefore its positive image or consumer appeal must be saved from ruin.
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The applicant is asserting a constitutional right vital to his life view and relatively tiny and virtually dormant enterprise.
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They engage the proper construction of the intellectual property protection found in section 34(1)(c) in the light of section 39(2) of the constitution 14 and of the constitutional guarantee of free expression.
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At the hearing, the respondent was unable to point to the respects in which the material was refutable.
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Furthermore, although this case has been presented as a david and goliath contest, it is not only the goliaths of this world who need trademark protection.
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Sachs j: does the law have a sense of humour.
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It employed the enemyâ€™s brand to denounce the power of branding in general, and to confront the employment of trademark law, in our country as elsewhere, to suppress free speech.
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In addition, corporations can claim tax advantages for the legal expenses involved.
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This is so because, firstly, it is unnecessary.
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It is so that the anti-dilution prohibition under section 34(1)(c) seeks, in effect, to oust certain expressive conduct in relation to registered marks with repute.
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It had been marketing t-shirts using at least eleven other brands.
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With effect from 31 december 1997, the respondent acquired ownership of three south african registered trade marks from a company known as sabmark international inc.
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We are not called upon to be arbiters of the taste displayed or judges of the humour offered.
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Relying on legislation regulating counterfeit goods, 7 seemingly standard bank made an unsuccessful attempt to confiscate t-shirts produced by the applicant and carrying comment on that bank.
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Thus, some degree of commerce should not in itself exclude the activity from free speech protection.
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Branding often has very little to do with the product itself.
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They chose parody as a means, and invited young acolytes to join their gadfly laughter.
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(2) when interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the bill of rights.
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However, the disjunctive elements of a likelihood of taking unfair advantage of, or being detrimental to, the distinctive character or repute of the marks remained in contention.
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I am inclined to agree with the respondent that all the material relating to amstel lager beer should not be admitted, as it is irrelevant to the present dispute.
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The amicus argued that the t-shirt bore a complex expression, capable of more than one reasonable meaning.
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The court found that the message questions the reputation of the marks and by that very act has unfairly and materially tarnished the marks.
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The growth of his business is dependant upon the growth of the meaning and importance of his trade mark.
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The respondent and sab tell us that the marks have become well-known and are used extensively across south africa in relation to beer sales.
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A finding of unfair use or likelihood of detriment to the repute of the marks hinges on whether the offending expression is protected under section 16(1) of the constitution or not.
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The respondent had advanced the contention that the message is capable of only one reasonable meaning and urged its adoption.
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We must assume without deciding that the limitation is reasonable and justifiable in an open and democratic society to which our constitution is committed.
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This compels a construction of section 34(1)(c).
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The message lies precisely in the dislocated use of the trademark.
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