Not All "Parodies" Are Created Equal. So, What About Titleist v. Titties?

While Demna Gvaslia and Vetements’ legal team (or lack thereof) may have gotten a laugh out of those Vetememes rain coats, so-called parodies do not usually end so well for the so-called parodists. Just ask Fahad Al Hunaif, the designer behind those garments and accessories that read “Cuntier” – alleged parodies of Cartier, who as slapped with a cease and desist letter from the famed jewelry company, threatening to sue him for trademark infringement, among other things.

Given the popularity of and demand "parody" wares not too long ago, the list of designers/brands that have been threatened with lawsuits and/or sued in connection with “parody” products is lengthy.

There was Haute Diggity Dog, against which Louis Vuitton pursued (and lost) a case several years ago over plush dog toys bearing Louis Vuitton-looking trademarks. More recently, Louis Vuitton took on My Other Bag (“MOB”) for its canvas tote bags, which bear cartoonized versions of famous "it" bags, such as Louis Vuitton's Speedy. Despite MOB's wins at the trial court and appeals levels, the case is still underway, as the parties are currently fighting over just how much Louis Vuitton will have to compensate MOB for in terms of attorney’s fees.

Louis Vuitton also recently filed to potentially take its case before the Supreme Court because the Paris-based design house's counsel strongly believes the New York federal courts got the standard for determining parody all wrong. 

You may also remember Jeanine Heller, who was sued by both Chanel and Yves Saint Laurent (remember Ain't Laurent Without Yves?) for her alleged parodies, and Snaks 5th Avenchew, which was slapped with a cease and desist letter by … Saks Fifth Avenue, of course.

And still yet, Henry Holland has reportedly faced some push back over some of his brand, House of Holland's "parody" tees. Some of the designers whose names were used on Holland's tees were not so happy about it and reportedly sent cease and desist letters to Holland and stores stocking the tees. Such designers are said to include Raf Simons, among others. 

The newest addition to that list: I Made Bogey, which, was sued by golf giant Titleist’s parent company, Acushnet, this past week over gear that makes use of the same distinct font as Titleist’s wares but swaps in the word “Titties.” In its suit, as first reported by Bloomberg, Acushnet sets forth claims of trademark infringement and dilution, and unfair competition.

It is important to note that just because a company claims its products are “parodies” does not mean much unless they can prove it. As we have told you in the past, “parody" is a term that carries some legal significance to it. In short, it is a fair use defense that may be asserted when a party is faced with a claim of trademark infringement (the unauthorized use of another’s trademark – such as its name or logo – in a way that is likely to confuse consumers in regards to its origin).

If a design is deemed to be an effective parody – one that uses the other party’s mark to contribute something new for humorous effect or social commentary – such a finding will allow its creator to dodge liability for infringement.

But it is notoriously not as simple as making a few changes to some other brand’s logo and calling it a “parody.” In fact, since the issue of likelihood of confusion (the key inquiry in a trademark infringement case), and the defense of parody, in general, are decided on a very factual basis, it is often difficult to predict how a court will rule.

What we do know is this: Parody and the defense of fair use are held to standards established by legislation and by various case law. For instance, in one famous case (Campbell v. Acuff-Rose Music, Inc.), the court held that parodic character refers to the extent to which the subsequent work (the alleged "parody") comments on the original work, and in order to be deemed a parody, a work should provide social benefit, “by shedding light on an earlier work, and, in the process, creating a new one.”

Another thing we know, while the Louis Vuitton v. My Other Bag case made it through decisions by the trial court and after that, the court of appeals, the average case tends to settle. As such, this very well may be the last time we hear about this lawsuit and see any of the “Titties” merchandise altogether.