As hipsters continue to rule the world, parody shirts, hats and other apparel have become increasingly prevalent, much to the dismay of luxury brand owners. Here are some recent examples:
There’s also an unsavory Cartier parody, which you can find discussed here.
Now available – the official Banksy New York residency souvenir T shirt (you have to take the jpeg to a copy store and make it yourself)
Despite seemingly obvious attempts at humor unlikely to cause confusion, luxury brands continue to aggressively police their brand by sending demand letters to these spoofers, asserting likelihood of confusion and/or dilution by tarnishment. The spoofers in response often cry “parody” and First Amendment rights, but just because the use may evoke humor or social commentary, it isn’t always a sure bet on a defense. Parody defense can be quite gray and courts have come down on different sides of the issue. If a parody confuses the consuming public into assuming source or sponsorship by the brand owner, then it often will be found to be an infringing use. Also, where the mark is used in a crude context, this may also be found by some courts to be an unlawful tarnishing use. An example where a court found in favor of the famous brand owner is the use of ENJOY COCAINE in view of the ENJOY COCA-COLA logo on likelihood of confusion based on survey results and tarnishment because of the negative association. Conversely, a court found that LARDASHE for pants for plus-sized women did not infringe the JORDACHE mark. Generally, a parody needs to simultaneously evoke the original and a contradictory message that it is not the original so as to avoid confusion.
So which of the examples above, if any, do you think may qualify for a parody defense?
P.S. If you like fashion or American made products (or maybe you’re a hipster), and you’re in Minneapolis this weekend, I highly recommend attending NorthernGRADE’s pop-up market. If you’re not in Minneapolis, definitely check out when their pop-up market event comes to a metropolis near you. It’s worth it.