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The Parody Defense to Trademark Infringement

Finding the boundaries of a piece of intellectual property is always much harder than finding the boundaries of a piece of real property. Real property has fences and walls and markers. Intellectual property only has legal doctrines. One of the places this problem appears most is with the parody defense to trademark infringement. The law recognizes a parody defense to trademark infringement, but it is more difficult to win with than in the world of copyrights. This is because trademarks are about making products identifiable, rather than protecting artistic expression. However, there are things that people can do to make parodies easier to defend in court.

The Core Problem of the Parody Defense

The core problem with parodies in trademark is that they expose a tension between two values that the law wants to protect. On the one hand, trademark law is about making brands easy for consumers to identify, so that they know what they are buying. On the other hand, First Amendment notions of free expression occupy a place of special reverence in American law. Parody is an important exception to intellectual property rights because it is a valuable form of commentary, and the owners of trademarks are not going to sell people licenses to make fun of them This tension means that a successful trademark parody has a thin line to walk. On the one hand, the parody needs to take enough of the original trademark to be identifiable, but it cannot take so much of the original that it becomes confusing.

How to Win on Parody

Parodying a well-known trademark is a risky proposition, but there are things parodists can understand to make it a safer bet. The first thing to understand is that parody is not an affirmative defense to trademark infringement. This is an important distinction based on the test for trademark infringement, whether it is likely that a consumer would confuse the two trademarks. This means that a court accepting the parody defense is not saying that something would be confusingly similar, but it is acceptable because it is a parody. Instead, the court is saying that because something is a parody, consumers could not possibly be confusing it for the real thing. Consequently, one of the best ways to succeed on the parody defense is to make it as clear as possible that something is a parody. This is done by making sure to take as little as possible from the original mark, and making sure that the new use is clearly meant to be humorous.

Another important distinction that courts take into account is the difference between parody as a target and as a weapon. Parody as a target involves using the mark to make fun of the mark holder or their products. For instance, in the case Louis Vuitton v. Haute Diggity Dog, a court ruled that a “CHEWY VUITON” dog toy was acceptable in part because it made fun of the high-end fashion brand. Parody as a weapon is the opposite. This type of parody uses a company’s brand to mock some other party or concept. This second type of parody is much harder to defend because if the parody is not mocking the company, there is little need to use their trademark.

Parodies are a common method of humor and social commentary today, but they come with legal entanglements. Whether you are a parodist who thinks they are being unfairly targeted by a company, or a company whose mark is being infringed by someone under color of parody, contact a Florida trademark attorney at Pike & Lustig, LLP today.

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