Copyright Law

Breaking News: Virgin America Sues Blog Over Parody Ad

By David Ardia

Earlier this week, California-based airline Virgin America filed a six-count complaint against the publisher and editors of Adrants, a blog focused on the advertising industry, after it published a post that was paired with a fake ad containing the Virgin logo and the statement, "The Hudson Crash: Just One More Reason to Fly Virgin."  The post has since been removed, but a cached version is available here (and on Gawker).

Virgin alleges in its complaint that

[t]he advertisement consisted of a photograph of the crash of US Airways flight 1549 from January 15, 2009 depicted under the heading ?The Hudson Crash: Just One More Reason to Fly Virgin." The posting had an express assertion by Adrants Co-Editor Natividad about the apparent validity of the Virgin America advertisement. However, the depicted photograph was not a Virgin America advertisement and the advertisement was in no way sponsored by or affiliated with Virgin America. Defendants? posting of the false advertisement on the Adrants.com website was likely to cause consumer confusion as to source, affiliation or sponsorship; was likely to and tended to dilute and tarnish the distinctive nature of and reputation ascribed to Virgin America?s famous name and trademark; and was likely to generate the false belief among consumers that Virgin America had sponsored, endorsed, was affiliated with, and supported Defendants and Adrants.com. 

Virgin's lawsuit asserts claims for trademark and trade name infringement, false designation of origin and false and deceptive advertising, trademark dilution, false and misleading statements, and defamation.

According to Agency Spy (another advertising focused blog):

In response to a Virgin America email demanding that the picture be removed, Angela Natividad, a head honcho at Adrants, added this copy above the original post: "UPDATE: Clearly, this ad is fake. A spoof. Virgin America has confirmed this. We were always supect from the get go and didn't mean to mislead or misrepresent. So we'll clearly state now: the ad is a spoof. It's not real. Virgin America had nothing to do with its creation."

I haven't had a chance to look closely at Virgin's legal claims, but it seems like a stretch to argue that a reader would conclude that the ad was anything other than a parody or that a reader would be confused into believing that Virgin endorsed the use of its trademark in the fake ad. To survive a motion to dismiss, Virgin would have to convince a judge that both are true. Moreover, Adrants would ahve a strong defense based on is use of the ad in news reporting.

For more on the case, see our legal threats database entry Virgin America v. Adrants Publishing.

Full post as published by Citizen Media Law Project on January 29, 2009 (boomark / email).