March 27, 2008
Will Wal-Mart Ruling Start Parody Naming Trend?
In copyright law, parody counts as “fair use.” So too in trademark law, it would seem. Wal-Mart accused Georgia resident Charles Smith of infringing on its trademark by selling products emblazoned “Wal-ocaust” and “Wal-Qaeda.”
It’s no surprise that Wal-Mart doesn’t find these particular parodies amusing, but even if Smith’s sites didn’t feature prominent disclaimers, it’s unlikely anyone would find the names—or the logos, for that matter—“confusingly similar.” The average person is plenty smart enough to realize that none of the T-shirts, posters, or bumper stickers comes from Wal-Mart.
And that’s exactly what Judge Timothy Batten concluded, as WebProNews reported. Smith is free to go on using the names “Wal-ocaust” and “Wal-Qaeda” to sell products.
Of course, Smith’s aim is to make a political point, not establish a business. Any company that chooses its name as a parody of another company risks obsolescence once the subject of the parody is no longer a household name. Some brands might continue to flourish even if no one gets the joke anymore, but if Wal-Mart went out of business, there would be no market for Wal-ocaust T-shirts.
Which is probably just what Charles Smith would love to see happen.
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