Simply Calling It a "Parody" Is Insufficient

One role of trademark law is to curb the unauthorized trading by one of the “goodwill” and brand recognition of another. Typically, trademark and brand licensing agreements are a “safe” way to collaborate with owners of well-known marks without risking infringement or dilution claims. While there are many defenses available to a defendant in a trademark infringement suit, such defenses (with few exceptions) are fact-specific. One defense is the parody defense. When a plaintiff asserts the parody defense, it is essentially arguing its “parody” will not cause likelihood of confusion such that trademark infringement cannot exist. Defendants are, in sum, arguing that consumers will not be confused and will not associate one product with another because their product simply “makes fun” of the registered (and usually famous) mark. Parodists should keep in mind that the question is not whether their work is simply labeled a “parody,” but whether their work would be found to create confusion in the mind of consumers. Because parodies necessarily have to remind consumers of the original mark, designers and others should tread carefully and not simply believe that labeling their product a “parody” will insulate them from potential infringement.