September 23, 2014

Parody Merchandise Shopping Spree

by Guest Blogger


As I have previously mentioned, one of the most common reasons your trademark application may be rejected is "likelihood of confusion" between your trademark and an existing trademark. According to the Trademark Office, "likelihood of confusion" exists between trademarks "when the marks are so similar and the goods and/or services for which they are used are so related that consumers would mistakenly believe they come from the same source." The federal courts use a similar (but much more complex) test for determining likelihood of confusion in trademark infringement disputes. Both allow a bit of a loop-hole for parody merchandise, which purposely copies another trademark.

According to the federal courts, a trademark parody is defined as "a simple form of entertainment conveyed by juxtaposing the irreverent representation of the trademark with the idealized image created by the mark's owner. A parody must convey two simultaneousâand contradictoryâmessages: that it is the original, but also that it is not the original and is instead a parody. This second message must not only differentiate the alleged parody from the original but must also communicate some articulable element of satire, ridicule, joking, or amusement. Thus, a parody relies upon a difference from the original mark, presumably a humorous difference, in order to produce its desired effect." Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252, 260 (4th Cir. 2007). This, I think, is a lawyer's way of saying it needs to be funny.

To be clear, though, "parody" is not a defense to trademark infringement, even if it is really, really funny. The fact that a trademark is a parody of another trademark is merely a factor in the ultimate likelihood of confusion analysis. To give you a few examples, I did some online shopping. Here are a few of my faves:


What do you think? Are these products likely to confuse consumers? If not, is it because they are parodies? No matter what your answer, I think we can all agree that we have to have that "Paws" shirt.

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