Fashion parodies are all rage right now: from sweatshirts to hats to bags, there is no shortage of designers poking fun at other designers. (Think: the Homiès sweatshirt featuring a play on the iconic Hermès logo and font) And understandably so; these parody designs run for a fraction of the cost of the real thing, and fit right into the current streetwear trend. But just how many of these designs are legal? And what, exactly, is the potential problem with these parodies?
Trademark law helps provide an answer…specifically, the concepts of consumer confusion, dilution, and parody.
Trademark law aims to protect both trademark owners and consumers through granting a trademark owner the “exclusive right to use a trademark when use of the mark by another would be likely to cause consumer confusion as to the source or origin of goods.” This “consumer confusion” acts as the basis for a traditional trademark infringement claim, in which it must be proven that “(1) [there is] a valid and legally protectable mark; (2) [the plaintiff] owns the mark; and (3) the defendant’s use of the mark to identify goods or services causes a likelihood of confusion.” Without all of these elements, the plaintiff will be unable to prevail on a likelihood of confusion claim.
However, even if all these elements are present, trademark case law has carved out a defense to infringement in the form of parody. In order to have a parody under trademark law, the seemingly infringing article must be two things at once: it must both be making a statement about the thing which it is copying, and, in turn, must also be viewed as humorous by the consumer. In addition, under current case law, an article that it being sold for profit (dubbed a “commercial use”) bears less chance of being considered a parody, and therefore increases the chances of a finding of infringement.
But consumer confusion is not the only avenue on which to make a trademark infringement claim; there is also the concept of “trademark dilution”, which may be able to afford relief. Dilution is the “lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of competition between the owner of the famous mark and other parties or of likelihood of confusion.” Under current trademark law, there are two types of dilution: (1) dilution by blurring, and (2) dilution by tarnishment. Blurring is “using an identical or virtually identical mark on goods or services that may be completely different and unrelated to the plaintiff’s product/service,” which results in the trademark not being able to act as a strong source identifier. An example of blurring would be if a household cleaning product entered the market bearing the name “Diet Coke”; while there is no confusion on the part of the consumer (thus there is not the traditional consumer confusion trademark infringement analysis, as discussed earlier), this new product would threaten to reduce the ability to indicate the source of the good by calling to mind now two products instead of just one. Tarnishment, on the other hand, is “[w]eakening the distinctiveness of a famous mark, usually through inappropriate or unflattering associations”. The problem, again, is not that the consumer is confused; instead, it is that the consumer now associates the mark with something unsavory, thereby potentially damaging the reputation of the mark owner.
But as with consumer confusion, even if dilution is present in a given situation, parody can act as a defense.
Fashion parodies present a problem because they “remix” well-known designer’s logos with new (and sometimes offensive) messages. The consumer may not necessarily be confused about the source of the designs, but the mention of the brand name or viewing of the logo now calls to mind multiple associations, thereby decreasing the mark holder’s value in the market. And because these parody designers are (most likely) turning a profit for their articles, this pushes against a finding of their designs being a true parody as the law would define it.
For the most part, designers have been fairly receptive to parodies; some of them even ordering the potentially infringing parody designs for themselves. (However, companies outside the fashion industry – most notably pharmaceutical companies – have not been so keen on parody designs.) So while it seems that yes, technically speaking, these parody designs should be a trademark infringement issue, the current culture in fashion has decided to embrace this injection of humor rather than rebel against it. Only time will tell whether this semi-amicable relationship will continue, though, and it will be interesting to see how things stand this time next year.
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Shane Keaney currently works as an infographic designer for Column Five in New York City. He discovered graphic design in high school and has been interested ever since. In addition to infographics, he has experience with print design, branding, graphic illustration, and copy writing. To view more of his work, check out his website, skdesignlog.blogspot.com, and www.behance.net/ShaneK.
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