Legality of a Parody of a Trade Name

By Rachel Moran

A trademark is a brand name that identifies the source of particular goods. Whether or not a trade name is registered with the US Patent and Trademark Office, a business has a trademark in its trade name because its name identifies the company as the source for a particular set of goods. Parodies are usually protected from trademark lawsuits because they are critical representations of or jokes about a trade name. Since a parody is obviously not the source of a certain product or service, it usually isn't infringing trademark rights.

Confusion

Clarity matters in parody. If there's a chance the public could confuse the source of goods, there's a chance the parody is a trademark infringement. For example, LL Bean lost a case against a sex magazine that parodied its catalog in a photo spread because at the time, it was unlikely someone would consider LL Bean as having created, or been a part of creating, the spread.

Commerce

Commercial gain is likely to undermine a legal defense of parody. A trade name exists for commercial purposes, so attempting a parody for commercial purposes might infringe on trademark rights. Contrary to the LL Bean case, Gucchi Goo, a purse company, was found to have violated a trademark because their alleged parodies of Gucci handbags were a commercial venture, with products similar enough to Gucci's to create confusion as to who designed the bags.

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First Amendment

Some judges believe the First Amendment trumps everything. Expressive freedom is one of our fundamental rights, so a parody that serves a genuinely critical function may be protected. For instance, a federal judge in Atlanta decided a man who runs the site Walocaust.com, a parody of WalMart's labor policies, has a First Amendment right to express his criticism that trumps WalMart's claim of trademark violation. Judges may balance the rights protected by the First Amendment with the likelihood of confusion created by a parody.

Actual Harm

Even though trademark infringement is usually decided by the likelihood of confusion to result, if no harm occurs, courts may favor the parody, regardless of how the trade name's use affects the public's understanding of the name as the source of a certain product. For example, Hormel, makers of SPAM, wanted to block the sale of certain merchandise for a Jim Henson movie that included a pig named SPA'AM. The movie character was allegedly "grotesque" and "evil," but the judge decided that he was, at worst, "untidy" and that parodies of Hormel's pork product were widespread enough in entertainment that there was no harm in this instance.

Reputation

Parodies that include drugs or are part of pornography may come under closer scrutiny because of social values. The Dallas Cowboy Cheerleaders prevailed against the owners of the pornographic film, "Debbie Does Dallas," because of the movie's depiction of the cheerleading squad in such a squalid manner. The parody used strong enough content that it was likely to affect the perception of the Cowboy Cheerleaders.

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Can the Owner of a Registered Trademark Be Sued for Infringement?
 

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How to Find Copyrighted or Trademark Phrases

Before using a specific phrase in your own work or for profit, it is important to check whether your choice of phrase is copyrighted or trademarked. You might face a civil lawsuit if you use a copyrighted or trademarked phrase without the owner's permission. A copyright grants legal protection to an artist's work and a trademark protects a phrase, a word, a symbol, a design or a combination of those elements that the public identifies with a specific person, business or organization. For example, a business slogan would be trademarked, but a distinct phrase that is part of a literary work would be copyrighted. Registration of a copyright or trademark allows the owner to take legal action against unauthorized use. Copyrighted phrases are usually registered with the United States Copyright Office, and trademarked phrases are registered with the United States Patent and Trademark Office.

Trademark Rights for a Similar Logo

The U.S. Patent and Trademark Office doesn't allow you to register a trademark if a similar trademark is already used to market the same good or service. The purpose of trademarks is to prevent confusion, and they play a key role in establishing specific brands. This is especially important in sectors of the market that are flooded with similar products.

Can You Trademark a Public Object?

When starting a business, most business owners strive to create a name and a set of identifying marks which will represent the business and appeal to consumers. But to protect those marks from being usurped by another, competing business, most owners turn to trademark registration. To obtain a trademark, however, the mark must first qualify for protection. When a public object is involved, whether trademark protection is available depends upon how the object is used.

File a Trademark Online. LegalZoom. Learn More.

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