Trademark Parody: A Fair Use and First Amendment Analysis
![handle is hein.journals/valr72 and id is 1089 raw text is: TRADEMARK PARODY: A FAIR USE AND FIRST AMENDMENT
ANALYSIS*
Many of our culture's best known and most powerful symbols are
trademarks. Producers of consumer goods and services spend enormous
amounts of money popularizing their trademarks,2 and some trademarks
occupy such a prominent place in the public mind that they have come to
symbolize not only particular products and firms but broader social
themes as well.3 Because of their symbolic richness, well-known trade-
marks present inviting targets for parody. Parody is at once a derivative
and a creative form of expression; its defining characteristic is that it in-
corporates some recognizable features of its object while altering other
features so as to ridicule the object and achieve a humorous or provoca-
tive effect.4 Although it necessarily appropriates elements of its object, a
* The Review wishes to thank Professors Timothy Dyk and Lillian BeVier for their
assistance in the development of this note.
' As defined in § 45 of the Lanham Act, the federal trademark statute, a trademark is
any word, name, symbol, or device or any combination thereof adopted and used by a
manufacturer or merchant to identify and distinguish his goods . . . from those manufac-
tured or sold by others and to indicate the source of the goods, even if that source is un-
known. 15 U.S.C. § 1127 (Supp. III 1985). Closely related to trademarks are service
marks, names or symbols used to identify and distinguish the services of a single person,
id., and trade names, names or symbols that identify a firm itself rather than its products,
15 U.S.C. § 1127 (1982). Because both service marks and trade names receive the same legal
protection as trademarks, see 1 J. McCarthy, Trademarks and Unfair Competition § 4.4 (2d
ed. 1984), this note will use the term trademark to encompass trademarks, service marks,
and trade names.
2 For example, the Coca-Cola Company spent over one-half billion dollars promoting its
product in the media between 1922 and 1972. Coca-Cola Co. v. Gemini Rising, Inc., 346 F.
Supp. 1183, 1187 n.1 (E.D.N.Y. 1972). Of course, the promotion of the trademark and the
promotion of the product itself are inseparably related. As the Supreme Court observed of
Coca-Cola's trade name, [I]t hardly would be too much to say that the drink characterizes
the name as much as the name the drink. Coca-Cola Co. v. Koke Co., 254 U.S. 143, 146
(1920).
For instance, variations on the trade name McDonald's are occasionally used to con-
jure up images of sterile and homogenized suburban America. Critics of the newspaper
USA Today have quite pointedly summarized their perceptions of the publication by la-
beling it the McPaper. See Henry, McPaper Stakes Its Claim, Time, July 9, 1984, at 69.
Similarly, the name Tiffany has become part of the national vocabulary as a term connot-
ing luxury and excellence. See Tiffany & Co. v. Boston Club, Inc., 231 F. Supp. 836, 843-44
(D. Mass. 1964).
' The parody of literary works has long been recognized as a legitimate form of literature
in itself. See Encyclopedia of Poetry and Poetics 600-02 (1965). Although the parody of
visual images has received less attention than literary parody, it serves the same purpose: to
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Trademark Parody: A Fair Use and First Amendment Analysis
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