Just Kidding

Q: Can I use a trademark for parody?[1]

A: Yes, if the interests of free speech outweigh the rights of the trademark owner.[2]

WTF: What’s that mean?

OK: Maybe some examples will help.

HMMM: So, it’s OK as long as it’s hilariously funny.

NOPE: “First Amendment protections do not apply only to those . . . whose jokes are funny and whose parodies succeed.”[4]

SO: Really bad parody can be OK?

MAYBE: But if the parody totally fails then you’re probably infringing because when people don’t get the joke, they’re more likely to be confused about the source of the goods or service.[5]

UH OH: Maybe I just shouldn’t do it.

NO NO: Parody is really important and the courts go out of their way to protect the 1st Amendment from overzealous trademark owners.

BUT: If I do it, I’ll probably get sued.

OH YEAH: And only famous trademarks are worthy of parody, so the company suing you will have lots of money. But, Topps® made Whacky Packaging for years.

HA!: Yeah, until they got sued by Coleco over the Garbage Pail Kids series.

WELL: That did happen. What can I say? Comedy is a risky business.

 

[1] We’ll be talking about parody, but the rule is the same for any type of comedy, criticism, news reporting, or commentary. It’s just that parody really pisses off trademark owners and those are the ones that get litigated. “The message of these cases is not merely that parody is accorded First Amendment deference, but rather that the use of a trademark in the communication of an expressive message is accorded such deference.” Yankee Pub. Inc. v. News America Pub. Inc., 809 F. Supp. 267 at 279 (S.D.N.Y. 1992).

[2] Yankee Pub. Inc. v. News America Pub. Inc., 809 F.Supp. 267, 276 (S.D.N.Y. 1992)

[3]  The image of the poster is about half way down the page.

[4] Yankee Pub. Inc. v. News America Pub. Inc., 809 F. Supp. 267 at 280 (S.D.N.Y. 1992).

[5] “A parody must convey two simultaneous – and contradictory – messages: that it is the original, but also that it is not the original and is instead a parody. To the extent that it does only the former but not the latter, it is not only a poor parody but also vulnerable under trademark law, since the customer will be confused.”Cliff Notes, Inc. v. Bantam Doubleday Dell Publishing, 886 F.2d 490, 494 (2nd Cir. 1989)

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