Tuesday, May 20, 2014

PARODY vs. TRADEMARK INFRINGEMENT

5/20/14, updated 6/23/15
This article will be updated as our research continues
COUNTERFEIT
In order to understand our stance on parody clothing, you first need to understand our stance on counterfeit products. It is illegal to sell new or used counterfeit merchandise. All around the country and world, FBI, Homeland Security, Immigrations and Customs Enforcement and local authorities seize illegal counterfeit merchandise at ports of entry, flea markets, wholesalers, websites, independently owned stores, mall kiosks, people's homes, street corners... Hefty fines, lawsuits and prison time ensue.

Counterfeits are strictly prohibited at our market. We are not lawyers or trademark experts, but conduct ongoing research. What may have been acceptable last week, may be banned this week.

While we wish our vendors the best of sales and success, every seller is vulnerable to making a few mistakes when seeking acceptable merchandise to offer at our flea markets. Savvy sellers regularly read our wolffs.com Merchandise Rules to check for updates as our cross-categorical research is ongoing.

When we analyze a product according to our parameters, it usually becomes clear as to if it is authentic or counterfeit. As more popular or sophisticated versions of counterfeit products enter the country we need to keep up with news and busts and continue to compare real and fake items.

Occasionally, we may not know on the spot and will place a product in our Research Zone for further analysis outside of the flea market. Sometimes we will borrow this item for the week and compare it to authentic products online and/or at a retail stores. Savvy vendors appreciate the care we take to assist them in being safe sellers and to keep our market a legitimate venue for good merchandise. We appreciate your cooperation as we home-school ourselves. Additionally, we have several community sources to assist us in this process.

As mentioned, outright counterfeits usually have quantitative, clear-cut qualities that allow us to assess their legitimacy and decide if we will allow them at our markets. However, a few brands are banned.
  1. Coach, Louis Vuitton, Gucci are not allowed because authentication is too complicated. We can usually tell if it is fake, but will not take the responsibility of assessing if it is real. So sorry, your own or grandma's old real purses are not allowed.
  2. Again, why? Flea markets have been sued by Coach and Louis Vuitton for allowing the sales of counterfeit products.
  3. Unrealistic availability: a quantity of authentic versions of certain high-end brands-not gonna happen (Chanel perfume, MAC cosmetics, Otterboxes, Lifeproof Cases, Beats by Dr. Dre...)
  4. Yup, the bad guys ruin it for the good guys. That's how society works.
If you are still reading this article, then you must be wondering about the parody thing we were beginning to talk about?

PARODY
Parody is simply defined as the use of trademarked/copyrighted material in a humorous, irreverent, spoof, lampoon application. Images of logos and team characters are often altered to varying degrees and additional images or props are included. Parody is considered fair use and the creators of parodied products are often successful with their sales. You may have seen parody and humorous versions of Chicago sports team clothing for sale around stadiums, corner stores and at flea markets (Wolff's included).

Unfortunately, unlike counterfeit merchandise parameters, there is not always a clear-cut answer as to where parody ends and trademark infringement begins. A problem occurs when the original licensee calls foul and sues or seizes parody products as counterfeit. The licensee claims that the parody item too closely resembles the real thing and a seller is accused of merely trying to capitalize on the original licensed imagery.

This happened with Blackhawks merchandise in June 2015 in Chicago and has affected our stance on sports parodies. 

How close is too close? How far is far enough? We continue to research and come to our own decisions. Remember that we are not lawyers. Even if a vendor is allowed to sell certain products at other venues, it does not necessarily mean that we will allow it at our market. And we are so obsessed with figuring this out, that we will change our opinion and ban another parody version in a heartbeat as we gain more information.

A few current parody versions that we do NOT allow: (prior to June 2015)
  • Any item that claims to be a parody, but uses portions of an actual trademarked logo. Examples: Bandana scarf over a team logo, mixed logo design, Chicago Blackhawks tomahawk/C
  • Any items using team or player names
  • JUNE 2015: THE SALES OF PARODIED SPORTS CLOTHING THAT INCLUDES PARTIAL OR ALTERED LOGOS IS CURRENTLY SUSPENDED AT WOLFF'S
Articles that have helped us figure this stuff out:
  1. "...the Board noted that the defense of fair use of a trademark by parody is weaker when there is potential for confusion as to the source of goods or services with a known mark, especially when used on similar goods or services."  http://www.natlawreview.com/article/united-states-trademark-trial-and-appeal-board-just-say-no-to-crackberry
  2. "...a federal court ruled in favor of Chewy Vuiton, whose products are decorated with a pattern reminiscent of the luxury-goods maker’s famed logo. Wrote Judge James Cacheris: The fact that the real Vuitton name, marks and dress are strong and recognizable makes it unlikely that a parody particularly one involving a pet chew toy and bed will be confused with the real product” http://blogs.wsj.com/law/2006/11/28/chewy-vuiton-beats-louis-vuitton-but-feels-a-bite/

1 comment:

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