Spoor & Fisher Comment on the SAB vs Laugh it Off. Case: Both Rights Enjoy Equal Status Before Court

The issues involved in the South African Breweries (SAB) vs Laugh it Off case are not new. In 1996, the Constitutional Court rendered a judgment in which it granted its endorsement to the new South African Constitution. In the case which gave rise to the judgment, the Court was required to rule whether the right to hold intellectual property (IP) rights, including trade mark rights, was a universally accepted fundamental right which should have been included in the Bill of Rights, as is the case in most countries in the world. The Court held that it was not.

This decision came in for criticism in IP law circles as it was felt that IP rights should be placed on an equal footing with other fundamental rights granted recognition in the Bill of Rights, such as the rights of privacy and freedom of expression. It was felt that if a conflict develops between an IP right and one of these recognised fundamental rights, the fact that IP rights do not enjoy parity with these other rights in the Constitution could lead to IP rights being considered to be subservient to such other rights.

The effect of the recent judgment in the SAB vs Laugh It Off case is indeed to grant the right of freedom of expression precedence over the rights of the proprietor of a registered trade mark. At first blush it would seem as though the fears expressed in 1996 in the IP community have materialised. However, a close analysis of the Court’s judgment in the Laugh It Off matter shows that in addressing the question of the conflict between SAB’s IP rights and Laugh It Off’s right of freedom of expression, the Court in principle gave the two rights equal stature, but found on the facts of the matter as presented to the Court that Laugh It Off’s right of freedom of expression should prevail.

While this conclusion is likely to be debated for some time into the future, it is a cause of some comfort to see that the Court departed from the standpoint that the two rights in principle enjoy equal status and that the intellectual property right was not an inferior one simply by reason of it not being specified in the Bill of Rights as a fundamental right. This marks an important, albeit belated, recognition of the status of IP rights.

Dr. Owen Dean

Spoor & Fisher

Date published: 2005/06/01
Author: Dr Owen Dean

Tags: sab laugh it off trade mark rights