Thursday, October 21, 2010

Recommended Reading: Anthony Fletcher, "The Product with the Parody Trademark: What's Wrong with CHEWY VUITON?"

Trademark authority Anthony L. Fletcher provides an entertaining and informative journey through the law of trademark parody over the past 50 years, concluding with his own proposed "Statement of the Law," in his article, "The Product with the Parody Trademark: What's Wrong with CHEWY VUITON?", 100 Trademark Reporter 1091 (September-October 2010). Or, in his own words: "The intent of this article is to explore how the law got from there to here [From WHERE THERE'S LIFE ... THERE'S BUGS to CHEWY VUITON], to identify and point out some possible missteps, and forgotten right steps, along the way, and, ultimately, to propose a paradigm for analysis of parody trademarks."

Mr. Fletcher observes that the courts employ a "structured analytical framework" for many common trademark issues: lists of likelihood of confusion factors and secondary meaning factors, etc. But not so for trademark parody:

When facing the parody argument or defense, courts have a grab bag of factors and often irreconcilable precedents from which to choose, but no generally accepted methodology for selecting or applying them. There is no accepted structured analysis for deciding what is required to establish trademark parody. There is no shortage of worthy ideas, both pro and anti-parody. But judicial attempts to reconcile and rationalize them have been few, if any.

Mr. Fletcher appends to his article a "Proposed Statement of the Law of Parody," which defines parody, immunizes political parody from legal redress, and provides for judicial relief against non-political parody only when there is a risk of confusion, tarnishment or blurring, or the undermining of the police powers of the State. But you will have to read the entire article to see how he got there.

Mr. Fletcher's comments on trademark law and life over the past half-century are well worth reading. [It isn't often that an article in the Trademark Reporter makes me laugh out loud.]

[This article is Copyright © 2010 the International Trademark Association, and is reprinted with the permission of The Trademark Reporter®, Volume 100 (September-October 2010).]

Text Copyright John L. Welch 2010.


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