Laugh it Off Promotions, the irreverent producer of satirical T-shirts which won an epic trademark battle against beer giant SABMiller in 2005, is getting a taste of its own medicine.
That’s because Jay Jays, the retailer of cool surf-themed clothing has apparently plagiarised one of Laugh it Off’s trademarked T-shirts and is retailing the product at half the price. Jay Jays originated in Australia, but is owned in South Africa by the Pepkor group.
This is all rather ironical, because Laugh it Off specialises in adopting and adapting other companies’ trademarks in order to pass social comment.
The best known example was its mocking adaptation of SAB’s Carling Black Label logo. It altered the logo – “America’s lusty, lively beer, Carling Black Label beer, enjoyed by men around the world” to read “Black Labour White Guilt, Africa’s lusty lively exploitation since 1652, no regard given worldwide”.
SAB took exception to this, but the Constitution Court upheld Laugh it Off’s right to freedom of expression, and argued that the trademark and sales of Carling beer had not been harmed by the sale of the t-shirts.
Other brand re-jigs include ‘Jou Ma’ instead of Ouma (rusks); ‘Dead Bull gives you mince’ instead of Red Bull gives you wings and ‘Ek’sdom’ for Eskom. Some of these brand-owners accepted the abuse of their brands in good humour.
The t-shirt in question depicts the WWF panda bear doing something it doesn’t do often enough – having sex – with the letters WTF under the image.
Bartlett, the voice of Laugh It Off is not seeing the humour now that the shoe is on the other foot. He does see the incongruity of the situation though. “WWF is not our trademark, but WTF is our spoof. Do the spoofers have claim to intellectual copyright or badge of authenticity on something that is effectively owned by someone else?
“We can’t take ourselves too seriously, but our work is original and makes a social comment; it is locally designed and produced, and it hurts when someone comes along and makes a blatant copy.”
General manager of Jay Jay’s in South Africa, Shaun Hoddy, confirmed that Laugh it Off had contacted the retailer in connection with the t-shirts. He readily acknowledged that the design was not original, but said the image on Jay Jays’ shirts was inspired by images on an American website. “If we have breached any trademark or copyright we will make it right. But we did not plagiarise that design from Laugh It Off, we were not even aware they had the same t-shirts.
“Google it,” he urged. “That design is everywhere. If they are the originator of the design then they should be able to prove it.”
Bartlett says he can prove that the design is original. “I’m paying a graphic designer a monthly fee to come up with ideas. He is not just surfing the internet. I don’t google for ideas. We value our originality and went all the way to the Constitutional Court to defend it.”
What matters most, he adds, is the principle. “So there was no malicious intent. I accept that. But I have an issue with big companies like this trawling the internet, finding a quirky image, slapping it on to a Chinese-made t-shirt and then saying that because it is ‘everywhere’ they are not doing anything wrong. This doesn’t hold water.”
Bartlett has proposed an amicable settlement. He would like Jay Jays to retail 1500 of the Laugh it Off t-shirts. Alternatively he would like Jay Jays to pay the company royalties on the t-shirts it sells.
Hoddy is cautious. “I am not trying to shirk anything. I understand what it is like to be the small guy in the clothing industry. You need to protect what you have. But I want to be sure of where we stand legally. If we agree to his demand, we are acknowledging that we have done something wrong. We don’t believe we have.”
It’s a fine line.