The War on Parody

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The sun sets and rises, and a company files another frivolous trademark infringement suit. The target in this case is a T-shirt maker that altered the Miller logo to read "It's Mullet Time."

According to the Chicago Sun-Times, Miller claims the product "is likely to cause confusion or mistake or to deceive consumers as to the origin, sponsorship or approval of the…T-shirts." Coming up next: The White House sues Saturday Night Live, because someone might think that comedian really is Dick Cheney.

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  1. The problem is a whole body of law that treats trademarks as property, when in fact they originally were — and never should be more than — a protection against fraud and customer confusion. This includes not just the imperative to defend the mark against any conceivable “infringement,” but the expanded definition of what can be a trademark in the first place and much of what’s been done under the dilution doctrine.

    I recognize that this story is a symptom of a larger problem. I think it helps illustrate just how big that problem is, since it involves a company haplessly invoking the concept of customer confusion in a circumstance where the chances of actual customer confusion are virtually nil.

  2. I’m sure the Miller probably wouldn’t care, if it weren’t for the need to protest every slight infringment in court. If not for that, it’s actually indirect advertising for them. I bet even the legal department there finds it somewhat humerous.

  3. I’m not sure this really counts as a parody. The joke is on people with mullets, not on Miller for having a cheesy ad slogan. Besides, the parody defense for trademarks is relatively weak by comparison to copyright. There’s a reason for that distinction. It’s very difficult to lampoon a work without copying at least some of it, and few authors would give anyone permission to publicly mock them. By contrast, anyone wishing to take a cheap shot at Miller or its ad campaign (which this T-shirt does not do) should be able to do so without designing a logo that looks so similar to theirs as to deceive a casual observer. If the observer is so deceived, it means he didn’t get the joke, and the parody failed as a parody.

  4. As Xrlq noted, this isn’t parody — it’s satire. The object being ridiculed isn’t Miller but mullets. Parody is protected (as it should be). Satire isn’t, and it’s not cut and dried that it should be.

  5. As most have observed….and that is exactly why if you ask for a Coke in a restaurant that serves Pepsi you will be advised of that fact and asked if Pepsi is okay.

    Jesse, this is a new bend in an old road but I’m not clear why a trademark should not be considered the property of it’s owner.

  6. I believe that this is similar to the OJ/Cat in the Hat Parody. In that case, The Cat in the Hat story was the vehicle used to parody OJ. Just as the Miller logo is being used here to parody mulletheads (as Xrlq points out). I think Miller is right in protecting their mark and that defendant loses.

  7. Does it have any bearing that Miller has not (as far as I can recall) used the slogan “It’s Miller Time” in any advertising in nearly two decades?

  8. Kevin: Given that the Cat in the Hat decision is one of the worst rulings of the last decade, I’m reticent about citing it as a precedent. At any rate, it involved copyrights, not trademarks, and therefore is a different kettle of legal fish.

    If anyone cares, I touched on some of these issues in this old article. (Which TWC will remember, since it prompted our first argument on the topic…)

  9. Jesse: Had I not read in the BoingBoing post (which you link to) that Miller was suing for copyright infringement and brand dilution (whereas the CST article mentions trademark infringement and unfair competition), I wouldn’t have cited the case. Even if that decision is off there is some good language in both Deere and Cliff Notes to make me think this wouldn’t be protected speech.

  10. It seems to me that the OJ/Cat case cited above is another argument against the ever lengthening of copyrights that regularly occurs. By now, it seems insane to not allow parodies based on The Cat in the Hat, Micky Mouse, Casablanca, etc. Speaking of which, how do all of these movie parodies avoid copyright suits? Is it because they call them “tributes?”

    Trademarks are different in my mind, since some have been used, relatively unchanged, for well over 100 years. But it certainly seems excessive how far things go today, with even colors being trademarked.

  11. Check out these t-shirts before they sue the hell out of me! I already got rid of “NUKE. JUST DON’T DO IT” and couple of otheres. However, if anyone interested he can contact me via e-mail.

    abibas

    and

    deFender

  12. Jesse,

    Whether this suit has merit or not, you can’t fault the company for trying to defend their “marks” – it is a slippery slope and if owners (or trademarks, copyrights, logos, etc.) are not diligent in protecting their property, they will lose (dilute) them.

    At least that is what the corporate attorneys tell us:-)

  13. …the product “is likely to cause confusion or mistake or to deceive consumers as to the origin, sponsorship or approval of the…T-shirts.”

    Yeah, because consumers of that product are just that thoughtful.

  14. Perhaps the doctrine of waiver is at the root of the problem here — i.e., if a company doesn’t stand up against any and all perceived trademark violations, no matter how small and how stupid, it could lose the ability to complain of major and important trademark violations by others.

    The doctrine should be revoked and companies should be able to make sensible decisions about which trademark “violations” to pursue, and which to drop out of common sense, public relations, etc.

  15. IANAL, but don’t trademarks have the same exceptions as copyrights, e.g. parody?

  16. This is one of those reoccurring stories caused by the ordinary persons lack of understanding of trademark law.

    Courts determine whether a trademark has slipped into the public domain based on how aggressively the trademark holder defends it. It is not any specific incident of infringement that matters as much as the pattern of defense. Any unanswered infringement, no matter how minor, will be used as evidence in future trials that the trademark was not defended. This forces trademark holders to sue over even the most trivial possible infringements.

    The fault her is not with the trademark holder but with the courts that use instances of parody as evidence that a trademark has slipped into the public domain.

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