The Trademark Act of 1946 (the Lanham Act) states that the test for trademark infringement is whether the junior mark “is likely to cause confusion, or to cause mistake, or to deceive” with regard to the original trademark. The Southern District of New York stated that a parody contains language which closely imitates or mimics another work for comic effect or ridicule. Generally, good parody should lead to the antithesis of confusion, as its intent is to mock the original mark in its similarity to the mark, with enough differences to clearly indicate that it is in no way related to, or a product of, the original mark holder. The courts, in defining parody, cite either the dictionary or the works of classical authors, stating, in one instance,that parody “seeks to ridicule sacred verities and prevailing mores”and that in doing so, “it inevitably offends others.” Courts, then, in ruling against the creator of the parody, have ruled either that the use is not to be considered parody at all, or that the parody created is not strong enough to overcome the likelihood of confusion with the original mark. A third set of cases, acknowledging the usage of parody, nonetheless ruled against the parody’s creator because the court found that the use of the parody would dilute the owner’s trademark.
Although recently courts have been far more sympathetic to third parties creating parodies of famous trademarks and service marks, a review of cases over the past thirty-five years indicates that courts did not always rule in favor of the defendants. At times, the courts found that the usage was not a sufficiently strong parody to dispel the possibility of consumer confusion, while in other instances, courts did not find parody at all, or found that a jurisdiction’s anti-dilution laws favored plaintiff’s interest in maintaining the goodwill of the mark being parodied. Recently-enacted federal legislation may clarify certain protections afforded to parodists, as well as protecting non-commercial usage of marks, but may still leave open certain issues,such as the parameters of a parody usage to be afforded protection.
