In response to the “Stand or Don’t Stand” NFL National Anthem controversy, an Army veteran (and we thank him for his service) has created a line of clothing to protest Nike’s support of NFL quarterback Colin Kaepernick, who has chosen to kneel rather than stand during the pre-game playing of the national anthem to protest police treatment of minority suspects. A friend of mine sent me an article referencing the clothing line, and it seemed like an ideal opportunity to discuss the use of parody in trademarks.
So what is a parody? To quote Louis Vuitton Malletier SA v. Haute Diggity Dog LLC (507 F.3d 252 (4th Cir. 2007)):
‘[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) (internal quotation marks omitted). This second message must not only differentiate the alleged parody from the original but must also communicate some articulable element of satire, ridicule, joking, or amusement. Thus, “[a] parody relies upon a difference from the original mark, presumably a humorous difference, in order to produce its desired effect.” Jordache Enterprises, Inc. v. Hogg Wyld, Ltd., 828 F.2d 1482, 1486 (10th Cir.1987) (finding the use of “Lardashe” jeans for larger women to be a successful and permissible parody of “Jordache” jeans).
This is an oft-litigated issue in Federal court, usually in response to a trademark owner suing an upstart parodist for perceived infringement of its brand and accumulated goodwill associated with the brand. Past disputed parodies include LARDASHE as a parody for JORDACHE brand jeans. In 1985, Jordache Enterprises, Inc. sued two New Mexico women who produced a line of jeans for plus-sized women, and called it LARDASHE, obviously a play off of the very famous and popular denim line. In its lawsuit, Jordache claimed that the name was sullying its reputation. Moreover, Jordache claimed, the term LARDASHE sounded like “lard ass,” which was an insulting and offensive term for an overweight person, and Jordache (understandably) did not want the JORDACHE trademark to be associated with such slurs. Incredibly, the courts sided with the alleged infringer, stating that it was unlikely that the public would believe that a manufacturer would use two different brands on the same product.
So what about the instant case? Using the test above, the JUST STAND does juxtapose an irreverent reference to the JUST DO IT trademark, complete with flag “swoosh” underneath, in order to lampoon the notion that sitting during the National Anthem is somehow more patriotic and sacrificial than going to war to defend one’s country. It juxtaposes 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 because Nike is now paying him to endorse their products and cash in on the controversy their now-spokesperson’s actions have generated. The JUST STAND mark is clearly a parody, having lampooned the swoosh beneath the words as an American flag.
Will Nike sue the manufacturer of the shirt, NineLine Apparel? That would likely be a bad move from a public relations standpoint, but Nike is probably stupid enough to try. Given the courts’ liberal application of the rules of parody, however, it’s likely that Nike has nothing to gain and everything to lose — lawsuit included — if it chooses to attempt to stop production of NineLine’s parody clothing.
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Parody & the Kaepernick Controversy: What About Parody in Trademark Law? posted first on https://trademarkdoctor.wordpress.com
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