Laugh it Off vs SABMiller: The Constitutional Court

Over the past two years, both parties have met in the Cape Town High Court as well as the Supreme Court of Appeal in Bloemfontein. On these occasions, the courts ruled not only initially in favour of the world's second biggest brewery, but then also gave the small t-shirt company the opportunity to have their case heard again and again, until their leave to appeal in the Constitutional Court was finally granted in late 2004.

Laugh it Off's counsel headed by Snr Advocate Peter Hodes and Anton Katz will argue that no matter how outlandish the previous judicial interpretations might have been, the meaning of the T-shirt's message remains academic as International legal precedent suggests 'fair parody' as one of the most palatable legal defenses in trademark disputes.

Gilbert Marcus who will be appearing for the Freedom of Expression Institute (FXI) as 'amicus curiae' (friends of the court), will recount a history of Black Label advertising campaigns featuring black South Africans working on coalmines and railway tracks, and then enjoying a Black Label at the end of the day. By aligning their brand with the self-same 'black labourer' that has suffered under white exploitation (as referred to in the T-shirt), Marcus contends that SAB are guilty by association - thus elevating the comment Black Labour/White Guilt to an example of fair parody.

Marcus's interpretation would thus seem the shrewdest - should the judges not be convinced by Hodes's stonewall approach that courageously denies SABMiller even have a case.

So the 11 Constitutional Judges will have their work cut out for them on Tuesday as they decide on the following: