Wednesday, November 26, 2014


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 Region.  I really liked the old logo with the ax in the lady’s head, but the current logo is still plenty weird and wonderful.  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, antiseptic-sounding name.  As my friend Doug commented on Facebook, they should call their fish department Catch-22.  Sheesh.

            Anyway, in 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. 
            Social 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 market.  I was tagged in several Facebook posts from people wondering what I thought of all of this, which was really cool!  Thank you, my people!  Here we go!

            Welcome to the wacky world of trademark parody.  We 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. 

            For trademarks it’s a little different.  A trademark is a commercial name, a designation of the source of a good or a service.  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?  No?  Well, OK then.  End of story, right?

            Not quite.  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.).  They 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 Golub.  Oh yes you would.

            They can 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 t-shirts.  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 and south?

            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.  Trademark 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 involved.

            But what about taste?  A number of folks have said the Ghetto Chopper shirt carries racial overtones and is generally disgusting.  Is it?  (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 since forever.  Does the gun push it over the edge?  Does it matter legally?

            No, it shouldn’t.  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.  The court, correctly, was unmoved:  “Indeed, the 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...” 

            There’s a 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 entirely legal. 

            In the end, as you probably already know, taste won out; Fasciana pulled the shirt.  Which is totally his prerogative, it’s his baby.

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.


At 2:31 PM, Blogger Roger Owen Green said...

Two things: I think you are right about the parody, and wrote as much in Ken Screven's TU blog comments. And yes, I DO think people are that stupid to think Things Go Better... was legit; they are, and I see them on FB daily.


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