US Barbie doll brand rebel backs Laugh it Off in trademark court battle with SAB
August 24, 2004 Edition 1
Estelle Ellis
Johannesburg: Fight, fight, fight - that is the message of one brand rebel to another on the eve of Laugh it Off's major trademark battle over Black Label.
Their appeal is to be heard by the Supreme Court of Appeal next Monday.
The small T-shirt company had been battling brewery giant SAB Miller since 2002 when they received the first complaint about their red garment sporting the words "Black Labour, White Guilt. South Africa's lively lusty exploitation since 1652. No Regard Given Worldwide."
The words on the real Black Label bottle read: "Black Label, Carling Beer. America's Lusty Lively Beer. Brewed in South Africa."
Tom Forsythe, who lives in Utah in the US, said he hoped the SA court would recognise the "fair use" of trademarks. He has had five years of legal showdowns with toy giant Mattel over his use of Barbie dolls in a series of photographs.
His case would be used as a precedent to inform the SA court about the way judges in other countries think about freedom of speech and trademark law.
"Brand bullies live and die by their images so they try to monopolise the dialogue. We, as consumers and artists, must be able to democratise the dialogue," Forsythe said.
Forsythe was first taken to court in 1999 after he used Mattel's famous doll to create a series of photographs called "Food-chain Barbie". He later said he decided on the series of pictures "to critique the objectification of women associated with Barbie and to lambast the conventional beauty myth and the social acceptance of women as objects because this is what Barbie embodies".
After some momentous legal battles, Forsythe won both his trademark case in the US Court of Appeals and a cost order to punish Mattel for filing a frivolous lawsuit in the same court.
The court found that "Forsythe turns (the Barbie) image on its head, so to speak, by displaying carefully positioned, nude, and sometimes frazzled looking Barbies in often ridiculous and apparently dangerous situations. ... In some of Forsythe's photos, Barbie is about to be destroyed or harmed by domestic life in the form of kitchen appliances, yet continues displaying her well known smile, disturbingly oblivious to her predicament... - his photographs parody Barbie and everything Mattel's doll has come to signify. ... But Barbie, and all the associations she has acquired through Mattel's impressive marketing success, conveys these messages in a particular way that is ripe for social comment".
Forsythe said the best advice he could give to Laugh it Off was to keep up the fight.
"Our world is increasingly defined by brands. If we hope to effectively comment on our world, we must be able to critique the brands that define that world. Humour hits home, so it's very dangerous to the bean counters of the world.
"I hope the decision in my case will help the Supreme Court of Appeal see the important cultural benefit of allowing ... citizens to critique the culture's brand makers."
But as Wim Alberts, a trademark law expert from the Sandton law firm Bowman Gilfillan, explains, this is the first time that the Supreme Court of Appeal would have to deal with a constitutional defence to a complaint about trademark infringement.
The court would have to consider the findings of Cape High Court judge Roger Cleaver who ruled against Laugh it Off. He said their slogan was not a "harmless, clean pun" and "bordered on hate speech".
