n SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Intellectual property as a constitutional property right : the South African approach

Volume 24, Issue 2
  • ISSN : 1015-0099
  • E-ISSN: 1996-2185



, an important South African Constitutional Court case, implicitly raised the question whether intellectual property could be recognised and protected as constitutional property under s 25 of the Constitution of the Republic of South Africa, 1996. South African Breweries (SAB) brought a case of trade-mark infringement against Laugh It Off, a company that sells T-shirts which make fun of existing trade marks. SAB had a registered trade mark for the words 'Carling Black Label' and for a representation of the label of its product. Laugh It Off sold T-shirts with the slogan 'Black Labour, White Guilt'. SAB argued that this negative connotation for their product caused damage to their property and business reputation. Laugh It Off, on the other hand, argued that they were allowed to parody a trade mark in terms of the right to freedom of expression. In South African law, this is the most important example of a conflict between an intellectual property right (in this case, a trade mark) and another fundamental right (freedom of expression).

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