It is the very nature of parody to
present two opposing messages: that the
parody is, in fact, the genuine article that
is being parodied, and that it is not the
original, but is instead just a parody.
When used to promote a product, the
parody may transgress federal trademark
law if it succeeds in the first objective
but not in the second. In that case,
the parody will have created customer
confusion, which is a critical element
for a claim of trademark infringement.
There was a recent victory for parody
in the marketplace when a federal
court rejected claims of trademark infringement
and trademark dilution
put it, the chew toy “ irreverently presents
haute couture as an object for
casual canine destruction. The satire is
unmistakable.”
The obvious nature of the parody
was legally significant because there
was no real likelihood of confusing the
chew toys with the upscale leather
goods they were meant to evoke. There
were clear and immediate differences
between the products, and even the
“ simplified and crude” imitation of
the LVM designs was not such as to
create a danger of confusion with the
real thing among the dog masters who
do the buying. (Dogs might see no
difference and chew up a $1,000 handbag
as vigorously as they would a chew
toy, but they have no say in trademark
lawsuits.)
Trademark dilution differs from infringement
in that it is not necessary to
show confusion in the marketplace. It
is a more nebulous concept, but prohibited
dilution occurs when there is
“blurring”
an association arising from the similarity
between the challenged mark or
name and the famous mark that impairs
the distinctiveness of the famous
mark. In the end, the very fact that the
chew toy parody was successful defeated
the dilution claim, just as it had
the infringement claim.
LVM’s trademarks are quite famous—
the court called them “ icons of
fashion.” But the fame actually
worked to LVM’s disadvantage in
court by increasing its burden of demonstrating
that the parody really was
likely to tarnish the distinctiveness of
LVM’s name and products. Not only
that, but the court saw the parody as
probably having a salutary effect on
LVM: A successful parody might actually
enhance the famous mark’s distinctiveness
by making it more of an
icon. As the court put it, the target of
the joke becomes yet more famous.
You might say that the court told LVM
to lighten up and see the upside of
having its products lampooned.
Resident Agents of Nevada, Inc.
(775) 882-4641
www.nevada.org
