Parody & the Kaepernick Controversy: What About Parody in Trademark Law?

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“To talk about trademark law today. I would like to talk about the use of of parity in trademark law now as you know there s this controversy playing out now in the media and amongst people about the appropriateness of taking a knee during the national anthem and nike just signed as a spokesperson the instigator of this taken heed during the national anthem movement as a spokesperson now in response to this an army veteran has created parody t shirts parodying the just do it logo but first i want to give a little bit of background information about parody. Now this is a subject that s been litigated a lot the most noteworthy example of this that i can come up with is a pretty famous case from the 80s. A pair of women in new mexico wanted to make plus sized jeans for women and they called them lar.

I can t even i can t even say that without giggling. They called them lar obviously playing off of jordache and jordache jeans were very popular at the time. I don t even know if those are still a thing these days. But at the time it was a very popular and kind of you know fancy pants pun intended brand so they created a brand for hefty women called lar now of course jordache sued.

Because they said you know we think that that parody is disrespectful and offensive to overweight people and we don t want our brand associated with that now surprisingly this totally surprises. Me the court agreed with the alleged infringer parodist s. . And said listen.

It is not reasonable to expect that a consumer because remember the issues like consumer confusion right. It s not reasonable to expect a consumer to think that a brand is going to have two different brands for the same product jeans. So this parody is okay so what about the instant case well let s have a look at the parody. I think it s a parody so we have here i m gonna pull this down a little bit just stand and just do it so obviously the parodist that s what we re gonna call the clothing manufacturer.

The parodist has taken the nike logo. The just do it and made a parody of it called just stand and they have fashioned into a sort of swoosh logo. The kind of oh a flag maybe it looks a little bit like an american flag. Obviously it doesn t look totally like an american flag.

Because there just isn t enough room to put 50 little stars on that field there..

But it s obviously a parody of the just do it logo that nike has been using for probably nearly 20 years now so what do i think about this let me go back. Here and switch over now without getting into the politics of it all because here we assiduously avoid any discussion of politics. My friends and family know how i really feel without getting into the politics of it let s look at the definition of parody. Now parody has been defined by federal courts as a simple form of entertainment conveyed by juxtaposing.

The irreverent representation of the trademark with the idealized image created by the marks owner a parody must convey two simultaneous and contradictory messages that it is the original but also that it is not the original and is instead a parody. So here i think this definitely falls into the classification of a parody. We are just opposing or the manufacturer of the parody is just opposing in a reverent reference to the just do it trademark complete with the flag swoosh underneath in order to lampoon notion that sitting during the national anthem is somehow more patriotic and sacrificial than going to war to defend one s country. And it just opposes also the irony of a millionaire football player claiming as sacrifice his decision to kneel during the anthem with the perception.

That his actions are no sacrifice at all especially since nike is now paying him millions of dollars a year to endorse their products and cash in on the controversy that that he created in the first place so i think this qualifies as parody will nike sue. The manufacturer of the the parody material to stop them from doing it well nike is probably stupid enough to do that despite the fact. That there s probably going to be a huge backlash. There s already a backlash.

But despite the fact that there s going to be an even bigger backlash and they will not get anything from it from a litigation standpoint. Because they re likely going to lose given the courts. Liberal interpretations and liberal allowance of parody in trademark law. I m angelo lang lots and i go live every weekday to discuss trademark law you can find me online at trademark doctor net.

And if you like this video. Please. Share it if you have trademark law questions find me at facebook at facebookcom. Forward slash trademark doctor and you can just like stay in flashbacks.

But we can just have alright let s now do this let s say what at least..

I asked you first no you cannot send that you cannot send that okay no alex actually stop actually stop. Alex oh. My gosh. Why did i give you my phone.

Why let s see what he says hmmm. Let s not see listen i send them at all well. It s not like i can take it back. There s already on more obviously all they went away back up back up this is so intense.

Oh my gosh he just responded. What he said thanks. But you can t just ask in the out she s my crush. Another text just came in no alex you re taking this way.

Too far stop. Oh. My gosh. He just said.

Unless you want me to ask piper out you need to back off alex stop. Oh alex i m being serious okay you know what you re gonna write. I m just gonna leave this one here on a cliffhanger next. I m going to text jensen.

No not jensen..

He s my best friend stop i have a actually really good plan. I got him why can t you just text your own friends for a little bit you know like prank mom or something like come on up. Why am i squad friends this is not okay. But i know that you guys game all night together and literally almost wake me up every night from you guys please fortnight or whatever you guys play so we re gonna text him that you don t want to play video games with him anymore because he s trapped.

What let s get this started no alex he s never gonna wanna close me again okay. He said. What we are literally so good together and i m not trash anyone s trash. It s you what whoa what a worse than why i m just gonna say no i always carry you i mean.

It s true. But you know alex. He s not gonna play with me ever again does the me like you is gonna cut you off you should say that because i was about to cut him off then you know maybe i will never lose him again he s pretty trash. I sent it back he s typing.

He s typing look why is he gonna trash like we literally oh. I always get the win. And he does it you need to stop you re taking it way too far again. Maybe.

I should tell him it s a prank yes. Please do okay tell him it s a prank. Then you don t feel really bad. He just text back and he said that s not true i revived you so much you re trasher than trash alex stop whoa getting mad.

I dunno what i m gonna say i m gonna say you re gonna feel really bad for the next thing..

I m gonna tell you dot dot dot. All my friends are you literally gonna be so mad at me. I sent it let s see what he says so let s just say it s a prank okay so let s talk it over with it s a prank. He said uh it s a prank and i m gonna send a voice memo.

Okay johnson you just got pranked. I m pretty sure you feel really bad right now. Because you just called your gaming partner trash oh text came in from jensen. What he said anyways walker.

Want to play for tonight. Sorry for calling you true oh awesome let s go oh my gosh. I forgot how much was opening this door. Did these things off of me.

I m going to go play for a night with my friend what don t excite her what are you doing okay so we re gonna get this way. Alex yeah. Okay i have a deal if you take these off those last two pranks were actually pretty funny and i was thinking i m tired of fighting with you over these pranks. I want to be in on the prank.

So if you let me loose. I ll be in on the prank with you because you know pirate did prank. Me recently making me meet her fake ex. How about you just untie me and i go in with ” .


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