With the recent North Face litigation involving the spoof clothing brand “South Butt,” there’s been something of a buzz lately about trademark parody.

Michael Atkins, at Seattle Trademark Lawyer, recently wrote on (and was quoted by the Associated Press regarding) Christian-themed trademark “parodies.”  These alleged parodies generally consist of a Christian-themed message displayed in the look and feel of a famous brand such as Starbucks or Abercrombie & Fitch.  Arkansas-based company Kerusso, one of the nation’s largest Christian-themed apparel companies, is behind a good number of the designs.

Here’s an example:

So, the question is simple.  Is this a parody?  If it is, it constitutes free speech protected by the First Amendment, and brand owners would have difficulty prevailing on claims for trademark infringment or dilution.  On the other hand, if it is not a parody, the brand owners have stronger claims for infringement and dilution.

As Michael Atkins has noted before, the question, in large part, turns on whether the shirts (and other merchandise) here are parodying the brands themselves, or whether the connection to the brand is tenuous and the alleged parody is more or less an instance of one company trading on the goodwill of another company.

Parody or not, we might not see a lot of litigation arise over merchandise such as this, simply for PR reasons: brand owners don’t want to alienate their Christian client bases.  This may be the best approach for some brand owners.  If you recall the recent détente between Mattel and the band Aqua over the “Barbie Girl” song, we saw how Mattel changed its tune from bully to collaborator– and likely saw increased profits as a result.  Brand owners obvisouly don’t want to go too far in consenting to third party uses of their trademarks and copyrights.  But a “pick your battles” approach to policing IP rights might offer a nice way forward for companies that want to strike a balance between IP protection and public image.

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