CCT42/04

[2005] ZACC 7

2006 (1) SA 144 (CC)

2005 (8) BCLR 743 (CC)

Moseneke J Majority judgment

Sachs J separate judgment

8 March 2005

27 May 2005

http://hdl.handle.net/20.500.12144/2220

Application for leave to appeal against the judgment and order of the Supreme Court of Appeal (SCA) reported as Laugh It Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International 2005 (2) SA 46 (SCA). The SCA upheld the decision but amended the final interdict granted by the Cape High Court, reported as: SAB International t/a Sabmark International v Laugh It Off Promotions [2003] 2 All SA 454 (C)

Application for leave to appeal against the Supreme Court of Appeal's judgment confirming a restraint order granted against Laugh it Off for infringement of the respondent's trade mark. The dispute concerned the proper interpretation of s 34(1)(c) of the Trade Marks Act 194 of 1993. Moseneke J, writing for a unanimous court, found that SAB had failed to establish the "likelihood of taking advantage of, or being detrimental to, the distinctive character or repute of the marks". He held that the right to free expression cannot lightly be limited and therefore as the section is aimed at protecting the selling power of the mark, an interpretation that conforms to the Constitution requires that evidence of a real likelihood or probability of harm of an economic sort must be adduced by the respondent. Accordingly leave to appeal was granted and the order of the SCA was set aside. Sachs J in a concurring judgment found that parody was central to the challenge, and that an expression of humour is not only permissible but necessary to the health of constitutional democracy