In trademark law, the likelihood of confusion between two marks is one of the most common reasons for trouble. But there is an exception to every rule, and attorneys in a recent case involving a crude knock-off of the Patagonia brand are seeking to use this one: the parody defense.
The parody defense is a tricky but permissible defense to the allegation of trademark infringement. If a party can show that its otherwise infringing mark is being offered as a parody of a well-known trademark, its use will be permitted. Success under the parody defense requires that the challenged mark conjure both the knowledge and goodwill of the original mark and communicate an element of satire, ridicule, joking, mockery, or irreverent commentary. It must also be clear to the public that the original trademark owner was not involved in the creation of the challenged mark.
The parody defense is based in the right to free speech. Where use of a well-known trademark is for the purpose of criticism, commentary or parody, the law requires a balancing of rights. The more well-known a trademark is, the more likely it is that the parody defense could be effective against claims to protect it.
Famous brands who have lost their battle to stop allegedly confusing use of their marks under the parody defense include Louis Vuitton (who tried to block “Chewy Vuiton” dog toys) and Mastercard (who tried to block Ralph Nader’s use of their logo in one of his presidential campaign ads).
The parody defense is risky and difficult to prove for those who choose to assert it. When it works, though, it is a valid exception to the rule prohibiting the contemporaneous use of confusingly similar marks in commerce.
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