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Re: I want a "Lucas Electrical Emergency Team" hat/t-shirt

To: Rocky Frisco <rock@rocky-frisco.com>
Subject: Re: I want a "Lucas Electrical Emergency Team" hat/t-shirt
From: Tab Julius <tab@penworks.com>
Date: Sun, 17 Aug 2003 14:12:03 -0400
At 01:44 PM 8/17/03, Rocky Frisco wrote:
>"Fair use" includes spoofs and parodies, which the teeshirt would 
>definitely be.


The "Fair use' you're thinking of primarily relates to copyright law, but 
there is a sort of equivalent for trademark law.  It's a little murkier, 
however:
"A review of trademark parody cases give us no bright line rules. Rather, 
they appear to be a barometer of both the presiding judge's sense of humor 
and sense of fairness. As Tom McCarthy puts it, "a non-infringing parody is 
merely amusing, not confusing. J.T. MCCARTHY, MCCARTHY ON TRADEMARKS AND 
UNFAIR COMPETITION, ' 31.38[1] (1995)."

So, if the judge thinks it's funny, you get away with it.

However, it's more lenient if it's non-commercial (that is, you're not 
making a buck on it) than if it's commercial.

However still, "Based on the same concerns for a company's reputation, 
courts have also stretched to find trademark confusion if the parody 
disparages the plaintiff's trademark. "

This last part applies to us, because if the parody disparages the 
trademark, as ours would, then it could create a problem.  Basically it's 
making fun of Lucas quality.

On the other hand, it starts off with "Based on the same concerns for a 
company's reputation"... what if their reputation was for flaky electrical 
systems?  :)

There's a full treatment of all this at 
http://www.cll.com/articles/article.cfm?articleid=32#4

But generally I think we're under the radar scope on this one.

- Tab

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