SAB International t/a Sabmark International v Laugh It Off Promotions  2 All SA 454 (C) Division: Cape of Good Hope Provincial Division Date: 16 March 2003 Case No: 3271/2002 Before: Cleaver J Sourced by: C.Webster and AD.Maher Summarised by: MT.Naidoo . Editor's Summary . Cases Referred to . Judgment .  Intellectual property Patents Trade marks Infringement of Trade Marks Act 194 of 1993 Section 34(1)(c) Antidilution provision Reputation or unique identity of the trade is blurred or diluted Trade mark is eroded by its use in relation to noncompeting goods or services.  Intellectual property Patents Trade marks Infringement of Trade Marks Act 194 of 1993 Section 34(1)(c) Unauthorised use of trademark Use of the mark in the course of trade Unfair advantage or detrimental to the distinctive character or repute of the registered trademark. Editor's Summary The Applicant, a company registered in Rotterdam, Netherlands was the registered proprietor of a South African trademark, the Carling Black Label range of alcoholic beverages. It also functioned as a trademarkholding company which managed, maintained and controlled the use of a range of trademarks throughout the world. The Respondent sold Tshirts bearing marks, which were similar to a number of wellknown trademarks, including those of the Applicant. The Court was faced with the Applicant's contention that the trademark on the Respondent's Tshirt infringed the provisions of section 34(1)(c) of the Trade Marks Act 194 of 1993 ("the Act") and applied for an interdict restraining the Respondent from using the offending marks. The Respondent submitted that its use of the Applicant's mark was justified as it was an expression of the Respondent's right to freedom of artistic activity contained in the right to freedom of speech and expression afforded to the Respondent in terms of section 16 of the Republic of South Africa Constitution Act 108 of 1996. Held In the determination of whether there was an infringement, the Court considered the provisions of section 34(1)(c) of the Act, the socalled antidilution provision. Dilution of a trademark occurs in instances when blurring or tarnishing of such trademark has occurred. Blurring takes place when the uniqueness and distinctive nature of the trademark is eroded by the use of the mark in relation to noncompeting goods or services. The Court followed the approach in Bata Ltd v Face Fashion CC and another 2001 (1) SA 844 (SCA) which provided for the requirements that a plaintiff must establish when relying upon section 34(1)(c) of the Act. The requirements were summarised as: (a) The use of the mark must be identical or similar to the registered trademark. (b) The use must be: (i) unauthorised; (ii) in the course of trade; Page 455 of  2 All SA 454 (C) likely to take advantage or be detrimental to the distinctive character or repute of the registered trademark. (c) The registered trademark must be well known in the Republic. (iii) On an application of the above requirements to the circumstances in casu, the Court adopted the view that there was a marked resemblance between the Applicant's registered mark and the mark used by the Respondent. The Applicant's mark was unauthorised and the Respondent made it clear that it was being used to promote the sale of the Tshirts. The Court also accepted the Respondent's submission that the quantity of the product sold and the extensive marketing and campaigning as proof of the "wellknown" status of the registered mark. Based upon a comparison of the trademarks as well as a consideration of the Respondent's understanding as well as its purpose for using the Applicant's marks, the Court held that the Applicant had established that the use of the mark would likely take unfair advantage or be detrimental to the distinctive character or repute of the mark. Finally the Court had to decide upon the Respondent's reliance on his right to freedom of speech and expression. The Court had to balance the right to freedom of speech as against the statutory protection in section 34(1)(c) of the Act. The Court concluded that the Respondent had transgressed the statutory protection. The Court invoked section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, which emphasised the importance the Legislature placed on eliminating racial friction. The Court held that the Respondent's use of the Applicant's mark could be hurtful or harmful based on race, ethnic, social origin or colour.