5.17.12 DAZED, CONFUSED, ETC

This article originally appeared in the 5.17.12 issue of Metroland.

            Trademark law can be a lot of fun. Some of you ancient folk might remember the great QE2 debacle of the late ‘80’s when Dave and Char Shortsleeve got a nastygram from Cunard Lines, telling them that their little punk club on lower Central (now the Fuze Box) was offering many of the same goods and services as Cunard’s luxury liners, so they had to immediately cease and desist use of the name QE2 for the club.   Hey sailor! Ships ahoy!  This was so silly it made national news.  Fact is, the Q had lifted imagery from the Sex Pistols for their logo, but nobody seemed too concerned about that.

            Trademark owners have always been a little over-protective of their stuff, and often shoot first and ask questions later when they see somebody else using their mark.  Thing is, what a trademark owner actually owns is pretty narrow: the sole right to use the mark to identify the source of a good or service in commerce, and the right to stop others if mark is being used in a way that will confuse consumers.  Generally, if somebody else uses your mark in a way that doesn’t confuse consumers, that’s OK.  In other words, your trademark rights can’t be used to stop people from talking about you.

            Now, the nuts and bolts of trademark law are all kinds of messy, because there are grey areas and judgment-call issues all over the place, and so courts have set up various tests and standards to help judges make decisions.  And too often courts, rather than taking a step back and looking at the big picture, apply these tests mechanically and come up with ridiculous results.

            This happened last week at the Trademark Trial and Appeal Board, an administrative court-like branch of the Patent and Trademark Office in Washington DC.  The Ralph Lauren-Polo shirt company was seeking to cancel a mark that parodied the ubiquitous little polo dude on his horse.   Here’s the two competing marks:

            Remarkably, the TTAB found the parody mark to be infringing, that it would confuse consumers.

            Nonsense!  In its analysis the TTAB applied several of those legal tests, including one that said the more famous a mark is, the more protection it gets.  Since the Polo mark is uber-famous, well, it wins.  Huh?

            This turns parody on its head.   In the real world, the more famous something is, the more ripe that thing is for parody.  If something is unknown, a parody of it is akin to one hand clapping in the forest, isn’t it?  A smarter California court recognized this in a case a few years ago where Mattel was trying to ruin the life of a goofy artist who’d had the temerity to market pictures of Barbie after a few spins in a blender.  Barbie's an icon, so let the parodies fly.  The bigger you are, the funnier you fall, baby.

            And even more fundamentally, look at those two images.  If you ran into somebody wearing a shirt with the guy falling off the horse would you (1) laugh and ask him where he got it, or (2) think to your self “oh, my, Polo must be expanding their brand”?

            C’mon, this would not be seen as a parody only by (1) someone who thinks too much and who has absolutely no sense of humor, or (2) the hypothetical “moron in a hurry”. “Moron in a hurry” is a term coined by Techdirt’s Mike Masnick to describe the ever-lowering standard for that inscrutable legal strawman the “reasonable person.”    The “reasonable person” is a sort of everyman, and judges and juries often have to decide what the “reasonable person” would think about things in deciding which way a case goes.

            And that’s freakin’ scary.  What do you base this standard on?  A random survey taken at Wal-Mart on a Saturday night?  Likely voters for president in Alabama?  Fox News viewers?  If you do, you’re likely to get a supreme “moron in a hurry”, the perspective of an uneducated buffoon, or people who voted for W for president (twice) uncurious bigots, or people who believe that humans were created along with dinosaurs when “god” snapped his fingers 6000 years ago.

            Does “reasonable” mean “average” or does it mean something else?  Is it an ideal to strive for?  And if it is, who sets the standard?

            Maybe rather than jump into this metaphysical black hole, the TTAB punted and applied these safe tests, got it supremely wrong, and moved on.  And shame on them.  It was a stupid decision.  And maybe you’re thinking “so, what, it’s just a funny shirt, what’s the big deal?”  The big deal is this: by all but negating parody as an allowable use of another’s trademark, the TTAB is setting a precedent that will chill future parodies.  And the next one probably won’t be a funny shirt.  It could be anything.  It could be political. It could be anti-government.  You see where I’m going.

Paul Rapp is an intellectual property attorney residing in the Berkshires and who has attended one polo match in his life.  He would have been uncomfortable had he not been drinking extremely heavily.