Trade mark owners: making “tits” of themselves
If we keep writing about it, it’s because it keeps happening. I refer here to trade mark infringement claims that make the news for all the wrong reasons – claims that attract shock and ridicule and evoke support for the person who’s supposed to be the “bad guy”. Interestingly, one of the common terms used by trade mark owners who make these claims is “tarnishment”. However, are their reputations being tarnished, or is it the reputation of the trade mark system that’s really being tarnished?
A story that’s not dissimilar has recently made the news – the story is so silly that there’s speculation that the demand was electronically generated and that no human considered it. This one involves a blogger whose site is dedicated solely to persuading people to eat as much Olive Garden pasta as they can using a loyalty card. When the blogger received a letter demanding that he cease use of the Olive Garden trade mark, he sent a response pointing out that what he is doing is lawful in the US under the doctrine of “nominative fair use”, a concept that has been described in a US court decision as “where the defendant has used the plaintiff''''s mark to describe the defendant''''s own product” (in South Africa, this might be described as non-trade mark use).
South Africans know all about the famous Black Label case, where SAB, owner of the Black Label trade mark in South Africa, was unsuccessful in its attempt to stop use of the term Black Labour on a T-shirt that had a political message. The majority of the Constitutional Court dismissed the claim on the basis that there was no likelihood of economic damage. Justice Albie Sachs, however, went further and examined the role of parody in some detail.
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