This article originally appeared in the 11.26.14 issue of Metroland.
Last week, Price Chopper made the beguiling announcement
that it was changing its name to “Market 32”, apparently a reference to the
company’s first store (the chain was originally called Central Markets) which
opened in 1932.
This is a little sad.
Price Chopper is one of those quirky brands that helps define the Capital
I really liked the old logo with
the ax in the lady’s head, but the current logo is still plenty weird and
And now Price Chopper (which
we gleefully refer to as “Prick Chopper” or the Frenchy derivative “Prix
Shoppez”) is going the way of the buffalo, to be replaced with a generic,
As my friend Doug
commented on Facebook, they should call their fish department Catch-22.
middle of this, a controversy broke out concerning a t-shirt
featuring a Price Chopper look-alike logo
that said “Ghetto Chopper” with a silhouette of a gun in the place of the ax in
the (now lady-less) coin.
The shirt was
the creation of local artist Chip Fasciana and notwithstanding considerations
of taste and propriety, it looked great.
media blew up; bloggers and commentators were alternatively decrying and
praising the shirt.
Apparently Price Chopper
sent Fasciana a C & D letter demanding the shirts be pulled from the
I was tagged in several Facebook
posts from people wondering what I thought of all of this, which was really
Thank you, my people!
Here we go!
the wacky world of trademark parody.
usually talk here about parody and fair use in copyright law, when you can copy
somebody else’s creative work without it being an infringement; it’s messy, and
involves the juggling of a bunch of factors like how much is taken, how it’s
used, and whether the new work is “transformational”, whatever that means.
trademarks it’s a little different.
trademark is a commercial name, a designation of the source of a good or a
A trademark can be words, a
logo, even a color or sound, almost anything that functions to identify where a
product comes from.
Trademark infringement occurs only when there is a
likelihood of confusion as to the source of a product.
No confusion, no infringement.
Did any of you think for a second that the
Ghetto Chopper t-shirt was produced by Price Chopper?
Well, OK then.
End of story,
Look at this from Price Chopper’s
perspective (for the record, I am a fan of Price Chopper, a devoted customer, I
think it’s a great company, etc.).
naturally would like this shirt to go away.
Hence the lawyers huffing and puffing and sending out C & D letters.
You’d do the same thing if your name were
Oh yes you would.
try to argue confusion.
Years ago a
court ruled that t-shirts saying “Things Go Better With Cocaine” infringed the
famous Coke logo, because some outraged citizens’ group had organized a boycott
of Coca-Cola based on what they thought was the company’s pro-drug
I suspect the citizens’ group
was a front for Coke; I mean, are people really that stupid?
OK, outside of large swaths of the mid-west
This was one
of numerous cases where a tormented judge tried to be the guardian of good
taste. But considerations of taste should hold no sway in trademark law, and
increasingly, they don’t.
parody is an accepted thing now; I’ve done some work with the Phish-fan art
community, which has generated hundreds of logo parodies that insert cryptic
song lyric references into major corporate logos.
Heck, a few years ago one t-shirt company
sued another for stealing corporate logo parodies.
The corporations being parodied weren’t even
A number of folks have said
the Ghetto Chopper shirt carries racial overtones and is generally
(I recommend you to the always-brilliant Amy
Biancolli’s discussion of this on her Times Union blog) For better or worse, the
downtown Delaware Ave. Price Chopper has been commonly known as Ghetto Chopper
Does the gun push it over
Does it matter legally?
In fact, the more tasteless
the parody, the less likely anybody’s going to think that the target of the
parody is responsible.
A few years ago,
a guy in Georgia was selling t-shirts with the Wal-Mart logo twisted into words
like “Walocaust” and “Wal-Queda”; Wal-Mart, predictably and understandably,
went batshit and sued.
correctly, was unmoved:
more outrageous and offensive the parody, the less likely confusion will
result... [T]rademark owners, like public figures who seek the public spotlight,
must accept the concomitant risk of public ridicule...”
couple of twists that I don’t have room to talk about, like the parody/satire
continuum or the fairly new federal law outlawing famous mark “tarnishment”,
but these things don’t change my basic view: the Ghetto Chopper shirt is
In the end,
as you probably already know, taste won out; Fasciana pulled the shirt.
Which is totally his prerogative, it’s his
Paul Rapp is a
Berkshire backwoods barrister who hopes you all will tune in to “Paul and Ted’s
Christmas in Hell” holiday radio extravaganza, which should air on WEXT 97.7
sometime in December.