At the moment, few things (other than leather) are making more of an impact in the streetwear world than "parody" designs. In the spirit of "parodies" (many of which are likely trademark infringing wares that designers are passing off as parodies) that are still flooding the market at a pretty rapid rate, here are OATW's PlusTax tees. OATW or Ohio Against The World is a Cincinnati, OH-based brand that has since spread worldwide, with fans hailing from Taiwan, South Korea, and Japan. The PlusTax tees and sweatshirts are parodies, according to their creator Floyd Johnson. He recently shed light on the design in an interview, saying: "It’s basically a 'for sale' sign. If you go to a grocery store you see a sticker on a banana or some shit that says 'on sale.' But the prices on the tees are kind of like jokes. 'Givenchy, $19.99! Oh wow and it’s plus tax.' I just put those high-end designer brands on sale. If you see somebody walking down Soho or Broadway with it, it’s like, 'Whoa, what is this about and what does it mean?' ... It’s not an insult or anything like that. I just thought it’d be pretty funny to do something different [laughs]."
The brands targeted by OATW's PlusTax tees: Chanel and Givenchy. As you probably know by now, whether designs are actually parodies and thus, subject to that form of protection protection, which is a subset of the fair use defense (as opposed to being plain old trademark infringement or trademark dilution, because the words Chanel and Givenchy are trademarks that are federally registered by the respective design houses) is a legal determination that depends on several factors, as well as the jurisdiction's case law. And because trademarks and intellectual property, in general, represents an enormous asset for design houses, "parodies" are often not a joking matter for these houses' legal departments. While I won't predict what a court would hold regarding the PlusTax tees, I will share this ...
Typically, a case involving a potential "parody" tee will initially rest upon the following question: Would the ordinary consumer likely believe that the "parody" tee was designed, sponsored or endorsed by the original fashion brand at issue? (Chanel, for example).
Also at issue is a potential trademark dilution claim, which rests on the question: Is the famous trademark at issue being harmed (via dilution) by the "parody" tee? The defense of fair use in the form of parody may also be addressed, including the question: What is being communicated by the intent of the parody, and is that message being effectively communicated? This is quite obviously more complicated than just that question, and is subject to additional questions, such as whether the potential "parody" use of the trademark negates any likelihood of confusion between the two uses, etc. Not surprisingly, courts have long struggled with balancing the public's right in free expression (as demonstrated in parody), with the brand owner's right to protect its image.