The Artful Jurist

Last night a lawyer friend and I saw the Oscar-winning short animation film, Logorama. As we walked out of the theater, we pondered — as only lawyers would do coming out of the movies — what legal grounds the producers of the film would use to keep from being sued for trademark infringement.

If you haven’t seen the film, it’s a violent, often profane story of death and destruction set in a world populated by commercial trademarks. For example, Michelin Man cops chase a crazed Ronald McDonald shooting up a building where the Esso Lady and Bob’s Big Boy hide in fear. From a publicity standpoint, not all the logos employed by the film fare well. McDonald’s iconic clown is particularly, unappetizingly evil in the film. Not the family-friendly image the hamburger chain likes to put forth.

So what’s to stop McDonald’s and all the rest of the corporate world from launching a massive trademark infringement lawsuit against Logorama’s producers? My initial reaction was that the unauthorized use of trademarks is protected by the doctrine of parody. That’s one of the fair uses that’s authorized under the U.S. Copyright Act.

But here we’re not dealing with copyright law. It’s trademark law that counts. How does trademark law view parody?

A little investigation led me to conclude that one is on much less steady ground when doing a parody of trademark as opposed to a parody of copyrighted material. The key, as with all trademark law, is that the parody of the mark must be such that there will be no reasonable opportunity for consumer confusion. That is, the unauthorized parody use of a famous mark is allowed to conjure to the public’s mind the actual trademark so long as there’s no reasonable chance that the public will be misled into believing that the trademark owner is actually connected with the parody or approved of the mark’s use. In other words, subtlety might not cut it.