Recommended Reading: William McGeveran, "The Imaginary Trademark Parody Crisis (And The Real One)"
Professor William McGeveren of the University of Minnesota School of Law, in an enjoyable and informative article, discusses the current state of trademark parody law in "The Imaginary Trademark Parody Crisis (And The Real One)," 90 Wash. Law. Rev. 713 (2015). [Follow him on Twitter: @BillMcGev.]
Abstract: In the two decades since the Supreme Court protected a crude rap spoof from copyright liability in Campbell v. Acuff-Rose Music, Inc., courts have grown to understand the great value of parodic expression in trademark cases as well. Today, plausible claims of parody almost always prevail over trademark rights in judicial rulings. This Article demonstrates that it is simply wrong to suggest, as commentators often do, that we face a crisis in the results of trademark parody cases. That distortion is harmful because it distracts reform efforts and it lends credence to overbroad assertions of trademarks against parody and other speech. Demand letters and other pre-litigation maneuvering by markholders exemplify the real crisis in the law of trademark parody. Reform should concentrate on making excessive threats against speech less effective. I argue that fast-lane defensive doctrines that reduce the burden of litigating parody cases, such as safe harbors and a broad artistic relevance test, are more important than perfecting substantive parody doctrine. Meanwhile,we should shout the truth from the rooftops: Markholders who sue legitimate parodies lose.Their threats are empty.
Read comments and post your comment here
TTABlog comment: Parody does not fare well at the TTAB. Witness the SEX ROD, THE HOUSE THAT JUICE BUILT, JUST JESU IT, and a string of other decisions. In fact, as I sit here at my kitchen table (watchful of possible falling ice blocks), I can't think of a TTAB case upholding a parody claim.
Text Copyright John L. Welch 2015.