exploiting black labour and that it has or should have a feeling of guilt and that SAB worldwide could not care
less. That is more or less in accordance with the finding of the court below. Counsel for both the appellant and
for FXI had some difficulty in explaining what the message was. Initially appellant's counsel asked us to ignore
Nurse's evidence that the intention was to satirise the mark and to find that the Tshirt says nothing about
SAB but says something in general about whites having exploited black labour. In reply he retracted and
adopted FXI's submission which was that it is a complex message which
Page 162 of [2004] 4 All SA 151 (SCA)
criticises the methods used by SAB to market its beer by targeting black workers. It should be emphasised
that the appellant accepts that it has no ground for attacking the employment practices of SAB. Nowhere on
the papers is any case made out of the exploitation of black labour. On the contrary, in a radio interview
shortly after proceedings were instituted, Nurse said that "it's obviously not a
View Parallel Citation
statement about SAB and their labour practices". What Nurse intended is not the issue, it is what he in fact
said or did. I have only referred to this evidence in order to indicate that the appellant does not rely on a
defence akin to truth and public interest or fair comment in the law of defamation.37
[26] I find the interpretation contended for by counsel for the appellant and for FXI strained to say the least and
that the interpretation contended for by Sabmark to be evidently the correct one. That leads to the next
question namely whether a Tshirt with such a message is substantially detrimental to the repute of the
marks (I shall return to deal with "unfairly" in due course). Sabmark submits that the impression created and
left in the mind of the public that SAB has always been and still is guilty of exploiting its black labour will, in the
light of the history of the country, in all likelihood be seriously damaging to its trade marks. Appellant's
counsel did not attempt to meet the point headon because it could not be met. It would be fair to pose the
question whether the message is not likely to create in the mind of consumers a particularly unwholesome,
unsavoury, or degrading association with Sabmark's marks. 38 The answer must be yes. Otherwise put, will
anyone who has seen the appellant's Tshirt be able thereafter to disassociate it from Sabmark's trade
marks?39 The answer must be no.
[27] The appellant attempted to find the answer to the question of detriment to repute elsewhere. It contends
that SAB has not established that there has been a loss of sales as a result of the appellant's Tshirt sales
but on the other hand it accepts that section 34(1)(c) does not require proof of actual loss but only the
likelihood of loss.40 It then contends that because the appellant is a small concern with relatively limited
sales there can be no detriment to the trade marks but counsel simultaneously recognised that the size of an
infringing operation is never relevant in determining infringement. There was also a refrain about the need to
establish irreparable harm for a permanent interdict. Quite a novel proposition.
[28] I therefore find that the message on the Tshirt is materially detrimental to the repute of the trade marks
concerned. This leaves for consideration the freedom of expression justification.
Page 163 of [2004] 4 All SA 151 (SCA)
View Parallel Citation
Freedom of expression41
[29] One should recognise that in latterday societies oneliners, sound bytes and SMS messages have become
the favourite method of communication, replacing political, religious and social monographs and tracts. Tshirts
fall in the same class and provide a powerful medium for making sociopolitical comments. As PJ O'Rourke once
remarked somewhat sardonically
"If Martin Luther were a modern ecologist, he would have to nail ninetyfive Tshirts to the church door at
Wittenberg."42
[30] It is important to note what section 34(1)(c) does not forbid and the extent to which it does not impinge on
freedom of expression. The appellant is free to use its caricature in the course of trade subject to a proviso: it
may not use it in relation to goods or services. The appellant may use it in relation to goods or services by
placing the caricature on Tshirts, flags or whatever provided it is not so used in the course of trade. That is
more or less why Canadian courts have found that the caricature of an employer's trade marks by a trade
union during a labour dispute does not amount to trademark infringement.43 The appellant may declaim the
message about black labour and white guilt from rooftops, pulpits and political platforms; and it may place the
same words (without appropriating the registered mark's repute) on Tshirts, and sell them. In other words,
its freedom of expression is hardly affected. A Canadian court has held that freedom of expression is not at all
affected if the appellant is able to say what it wants to say in another manner. 44 US courts have also held
that trade marks need not yield to First Amendment rights under circumstances where adequate alternative
avenues of communication exist.45 Whether these statements are correct in absolute terms one need not
decide since it suffices to say that the availability of adequate alternative avenues is a relevant factor to
consider in this context.
[31] Returning to the fact that trade marks are property: Some courts have held that the freedom of expression
does not entitle a party to damage private property.46 Noone would suggest that painting graffiti