-Wes Anderson, Attorney

I recently came across this new piece of merchandise available for sale online:

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Look familiar? Those familiar with the restaurant chain Arby’s likely think so.

The shirt is a product of the parody Twitter account @nihilist_arbys, created by a former writer for The Daily Show. With occasional references to current events, Nihilist Arby’s darkly comedic tweets are chock-full of cynical missives on life and humanity, and they often close with “Eat Arby’s.”

With over 230,000 followers, the account’s creator, Brendan Kelly, has certainly struck a nerve. As reported by Adweek, the account may “prove to be instructive for millennial-minded [advertising] practitioners, and the tweets collectively paint a picture of how Kelly created a social-media sensation.” At one point last year, the account even obtained better engagement numbers than the actual Arby’s social media account.

But Twitter accounts are one thing, as the site is chock-full of fake accounts and parodies of overreaching brand engagement. But what about actual, physical merchandise? Does that also escape trademark infringement liability under the guise of parody?

The Fourth Circuit dealt with this question in Louis Vuitton Malletier, S.A. v. Haute Diggity Dog, LLC, in which a pet products manufacturer using the mark CHEWY VUITTON successfully overcame a claim of trademark infringement based on a parody defense. According to the Fourth Circuit, parody is defined as “as simple form of entertainment conveyed by juxtaposing an irreverent representation of a trademark with the idealized image created by the mark’s owner.” To constitute a permissible parody, the Court said the allegedly infringing mark used must convey two messages – that it is both the original and it is not the original mark:

“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. 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.” (internal quotations and citations omitted)

We can see these elements take form with Nihilist Arby’s merchandise, that is, the “hat” logo and font are almost immediately recognizable as referring to Arby’s. But in order to constitute a permissible parody, there must also be differentiation to “immediately convey” a joking and amusing message. As the only difference is the wording (i.e., “NOTHING” instead of “ARBY’S”) this may be up for debate.

The distinction might not quite be “immediate,” as to actually understand the parody at work, consumers may need to be familiar with the parody Twitter account as well. So while there may be some room for an infringement claim, I’ve previously suggested it’s often more beneficial to avoid the negative PR that may come along with actions perceived as “trademark bullying.”

We’ll see if the merchandise remains for sale, or if the restaurant chain decides to take any adverse action. In the meantime: Enjoy Arby’s.