Pet Peeves: Trademark Law and the Consumer Enjoyment of Brand Pet Parodies
Petty, Ross D., The Journal of Consumer Affairs
Consumers appear to appreciate trademark parodies, particularly those that are related to pets. In contrast, some trademark owners object to such parodies. However, as this article demonstrates, trademark law generally allows the sale of parody products unless these products copy the targeted trademarks too closely.
Chewnel No. 5, Furcedes, Dog Perignon, Sniffany & Co., Grey Poopon chew toys, Dogiva treats, Miss Claybone and Timmy Holedigger pet perfumes, and T-shirts sporting the images of the "Big Dogs of Wrestling": Hollywood Hound Hogan, Bone Cold Steve Pawstin, Goldbark and the Underdogger, are just a few pet-related brand parodies, many of which have been challenged by brand owners who seem to dislike pets, lack a sense of humor, or both. This note analyzes both the legal bases used by these petulant plaintiffs and the potential for consumer harm resulting from these pet parodies. It suggests that in most cases, there is little potential for consumer harm, and in fact, these parodies suggest consumer popularity and even affection for these brands. Stretching trademark law to deprive consumers of pet parody products reduces the ability of pet-loving consumers to enjoy famous brands rather than improving the overall value of the brand to consumers.
THE CHEWY VUITON DECISION
A recent Fourth Circuit Court of Appeals decision in a case involving Chewy Vuiton chew toys illustrates the latest judicial thinking concerning pet-related trademark parody products. The decision focuses on trademark infringement and dilution. It first finds that the product in question is indeed a trademark parody. The pet toy, pictured below, simultaneously presents a close imitation of the original trademark and a distinctively different representation that conveys a parody of the original. It conveys ".just enough of the original design to allow the consumer to appreciate the point of parody, but stop[s] well short of appropriating the entire mark" (Louis Vuitton Malletier, S.A. v. Haute Diggio, Dog, LLC 2007). The inexpensive coarse dog chew toy pokes fun at the expensive and elegant Louis Vuitton handbags purchased by the rich and famous.
However, finding the first product to be a proper parody of the second product's trademarks and trade dress does not resolve the lawsuit. The court then analyzes first the potential for consumer confusion regarding origin, sponsorship, or affiliation under trademark infringement and second analyzes whether the parody blurs the ability of the famous trademarks of the second product to uniquely identify a single product source, thereby causing dilution of the selling power that these marks have with consumers. The second legal theory, trademark dilution, explicitly provides for a fair use defense for trademark parodies that do not designate the source of goods (15 U.S.C. [section] 1125(c)(3)(A)(ii)). However, the court found that in this case, the parody was not being used as a designation of source so the defense did not apply. The court therefore examined both trademark infringement and trademark dilution by blurring using a multifactor analysis.
Based on empirical study of all US trademark decisions from 2000 to 2004, Beebe (2006) suggests that three factors are nearly always dispositive for infringement cases. First is the degree of similarity between the trademarks. Based on its finding of parody, the court noted that while the parody was necessarily somewhat similar to the original trademarks, it also had distinctive differences that made consumer confusion unlikely for trademark infringement and made it unlikely the parody would dilute the distinctiveness of Louis Vuitton's famous trademarks.
The second dispositive factor according to Beebe (2006) is the proximity of the goods. The court observed that Louis Vuitton did sell dog collars, leashes, and pet carriers but did not make toys. It characterized the Louis Vuitton's pet products as fashion accessories and quite different from inexpensive parody dog toys. …