Free speech ruling sees withdrawal of 'Hellkom.co.za' Case

South Africa

In light of a Constitutional Court decision issued earlier this year, South African telecommunications giant Telkom SA Limited has withdrawn its trademark infringement case against an individual who was using the domain name 'Hellkom.co.za' for a website critical of Telkom's practices.

In July of 2004, disgruntled South African Greg Stirton, frustrated with the monopoly that Telkom had over the telecommunications industry, decided to create a criticism site under the domain name 'Hellkom.co.za'. Among other things, the site includes an altered version of the Telkom logo, in which Telkom's blue keypad logo is depicted in the colour red and decked with devil horns and a tail. The slogan "Hellkom - Prices that will make you sweat" is also displayed on the site.

Telkom instituted legal action against Stirton, claiming R5 million-worth of damages for defamation, copyright infringement and trademark dilution, if he did not refrain from (i) the unauthorized use of its trademark, and (ii) the use of disparaging logos.

In the meantime, the case of Laugh It Off Promotions CC v South African Breweries International (Finance) BV, which related to the use of satirical slogans on T-shirts, was making its way through the Supreme Court and finally the Constitutional Court (see 'Black Labour' user hopes to get last laugh in tarnishment appeal and 'Black Labour' user has the last laugh in tarnishment appeal).

In essence, the Constitutional Court's ruling in the Laugh It Off Case means that the right to free speech takes precedence over a trademark holder's rights. The court also noted that the fact that parody is commercial does not necessarily exclude it from the protection afforded by free speech, and in a society dominated by brands there must be scope for criticism.

Following the release of this judgment, Telkom appears to have decided that it was unlikely to win its case against Stirton. It has now agreed to withdraw its case and has even stated that it will pay his legal costs.

Shamin Raghunandan, Spoor & Fisher, Pretoria

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