Title: Twelve Years of Surveys: How the Arising Interpretation of the Federal Trademark Dilution Statute Chills Parody Trademarks and How Courts Can Change This
Abstract: The federal trademark dilution statute imposes civil liability for commercial use of another’s famous trademark but specifically exempts parodies of famous trademarks. Unfortunately, courts have interpreted this amendment to allow claims against parodies of trademarks when the parodies, themselves, take the form of trademarks. Thus, in 2010, the Second Circuit held that the parody exemption did not apply to a brew of coffee labeled “Charbucks” — a clear parody of Starbucks coffee, leading to several more years of fact-intensive litigation for these parodists. In so doing, that court allowed the regulation, or at least chilling, of formerly protected speech and did so without ever mentioning the First Amendment. This article identifies an alternative interpretation of statutory text that would protect parodies like Charbucks against dilution claims as a matter of law. It argues that the Second Circuit’s interpretation, by allowing companies to stifle criticism of themselves and their famous trademarks, creates serious First Amendment concerns, is contrary to the expressed will of Congress, and is bad as a matter of public policy. The article then urges courts to apply a second, parody-permissive, interpretation of the trademark dilution statute.
Publication Year: 2014
Publication Date: 2014-05-20
Language: en
Type: article
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