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trademark parody art

September 17, 2014

JDSupra: “(Subway) Eat Flesh, An Effective Parody?” by Steve Baird:

So, I’m left wondering why hasn’t Subway jumped on this zombie with both boots? After all, we don’t only have a famous mark targeted by this parody, but a very famous mark, thanks Etsy.

Baird, of Winthrop & Weinstine, P.A. continues:

I’m thinking that whoever created and is using the stylized ZOMBIES EAT FLESH trademark has zero chance of successfully registering it (no surprise, no application has been filed, to date), I just can’t see the USPTO allowing it, can you?

But, if Subway were to actually bring a trademark infringement and/or trademark dilution action in federal district court, would that be a walk in the park with this zombie, or the cemetery?

I’m thinking that the federal district court takes a much closer look at the parody defense and pays more attention to First Amendment concerns. Do you agree that the zombie has a better than zero chance of successfully defending on parody grounds?

If so, doesn’t this example help make the point, again, about the difference between the right to use and the right to register?

Meanwhile, spotted on Facebook today, “In Our Dreams We Have Seen Another World” by Jake and Dinos Chapman, posted by Made in Shoreditch:

This amazing art has Nazi and skeleton warriors and a field of crucified clowns. This could be a horrific expression of fascism against expressive artists but it’s Ronald McDonald. Now true, Mr. McDonald is a clown but he also personifies a particularly bloody megacorp cow killing machine. It’s not really clear to me what this particular fantasy genocide art is about. Still, it’s got to be protected parody, right? But less likely that the artists could trademark this stylized world (as again “the difference between the right to use and the right to register”).

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