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Intellectual Property Law: SIVACRACY .NET
Right To Parody Trademarks Endorsed By Court Under New Law
By Siva Vaidhyanathan
A biting satire it may not have been, but Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252 (4th Cir. 2007), nonetheless concluded that canine chew toys fashioned after Louis Vuitton handbags were a permitted parody that did not infringe or dilute Louis Vuitton's admittedly well-known marks. Although the decision scratches little new ground in the trademark jurisprudence of parody and infringement, it was a first opportunity for an appellate court to assess parody under the new Trademark Dilution Revision Act. The court here squarely rejected a concerted, if not to say dogged, effort by Vuitton and its amicus, the International Trademark Association, which both urged a position that, in the words of the court, would "automatically" have made parodies unlawful. Id. at 264.
The Fourth Circuit, in affirming the district court's grant of summary judgment, fully applied the multi-factor test of likelihood of confusion, yet its application of the infringement test was shaped entirely by its initial assessment of what might be called the parody paradox; namely, that the parodist, to be effective, must make his or her rendering readily recognizable as the original yet just as readily distinguishable as a commentary upon the original. Louis Vuitton explains: "'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.' [Citation 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." 507 F.3d at 260. Under this standard, the court had little difficulty articulating the necessary element of satire, ridicule, joking or amusement despite (or because of) the fetching likeness of the two products: "The furry little 'Chewy Vuiton' imitation, as something to be chewed by a dog, pokes fun at the elegance and expensiveness of a LOUIS VUITTON handbag, which must not be chewed by a dog." Id. at 261. ...
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