Is Parody in Advertisements Trademark Infringement?

A viewer asked me about a video that he had seen online, wherein Subway sandwich chain poked fun at rival McDonald’s burgers, using a video that seemed to use the McDonald’s “Golden Arches” logo. I discussed parody on an earlier video, which is why this question came up again. Let’s have a look at the video first, and then analyze the video.

By the way, my use of the video here for teaching purposes falls under the “Fair Use” exception to copyright law, so it doesn’t violate the copyright of Subway Sandwiches.

So recall the definition of parody that the courts have given us:

[P]arody’ is defined as a simple form of entertainment conveyed by juxtaposing the irreverent representation of the trademark with the idealized image created by the mark’s 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.” People for the Ethical Treatment of Animals v. Doughney, 263 F.3d 359, 366 (4th Cir. 2001)

In the video, we see the ‘Golden Arches’ trademark (arguably) being used as if it were a heart monitor, beating like a heartbeat and accompanied by the word “burger.” The “heartbeat” eventually flatlines, as if the subject being monitored suddenly died. Then the video asks, “Is your burger routine feeling a little flat?” and then goes into an enticing array of images intended to make the choice of a Subway sandwich infinitely more interesting. During the time the “burger EKG is going on, Subway is careful to note, in small script at the bottom of the screen “Not Affiliated With McDonald’s,” presumably to ward off any temptation by MickeyD’s to accuse them of trademark infringement.

I think that this definitely is parody, and not trademark infringement. Using the definition supplied by the courts, it does juxtapose an irreverent representation of the trademark — the “Golden Arches” as an EKG output — with the idea that McDonald’s is an everyday routine, as quotidian as your heartbeat. It uses the “Golden Arch” trademark as the EKG to poke fun at the “heartbeat of McDonald’s,” suggesting Subway’s product as an alternative to the stale idea of a hamburger for lunch, inviting the viewer to “Take a Break From The Burger.” Rather than attempting to mislead the consumer into believing that what is being offered is sourced from McDonald’s, Subway is distinguishing themselves from McDonald’s as a fresh alternative. This contrast and clear poking fun at McDonald’s is what makes this a parody rather than trademark infringement.

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