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Further Ruminations

During the wonderful year I spent in Little Rock, Arkansas, as a law clerk to The Honorable Morris Sheppard Arnold, U.S. Court of Appeals for the Eighth Circuit, I learned a great deal about jurisprudence.  I also added a number of colorful new expressions to my vocabulary, including one of my favorites, "I [just about/haven't quite] chewed all the sugar out of that gum."  In other words, "I [have/have not] finished with that subject."

Judging by your emails, I haven't quite chewed all of the sugar out of the Chewy Vuiton [sic] case, a.k.a. Louis Vuitton Malletier SA v. Haute Diggity Dog, LLC.  In a decision handed down last week, the U.S. District Court for the Eastern District of Virginia (a.k.a. the rocket docket) granted summary judgment in favor of the defendant, a manufacturer of products for pampered pooches.  The line of dog beds and toys includes a number of humorous versions of luxury brands, including Furrari, Jimmy Chew, Sniffany & Co., Chewel #5...and, of course, the Chewy Vuiton "handbag" toys and beds at issue in the case.  (They're even labeled "parody items" -- probably a lawyer's idea.)

LV Cerises and Multicolore patterns

Haute Diggity Dog parodies

The court, in a "punny" opinion tailor-made for law school casebooks, analyzed claims of trademark infringement, dilution, counterfeiting, and copyright, concluding in each instance that either Haute Diggity Dog had engaged in legimate parody or Louis Vuitton had failed to make its case.  The most interesting part of the opinion, legally speaking, is that it is the first case to address the Trademark Dilution Revision Act, which became law on October 6, 2006. 

In trademark law, the basic standard for infringement is "likelihood of consumer confusion."  Just like famous people, however, famous trademarks are surrounded by additional security.  If a trademark is famous, e.g. Louis Vuitton, the trademark holder need not prove a likelihood of confusion, but only (under the new act) a likelihood of dilution.  This dilution may take the form of making the famous mark less distinctive because there are so many other similar marks out there (dilution by blurring) or harming the reputation of the famous mark by associating it with certain other goods (dilution by tarnishment). 

The Trademark Dilution Revision Act in some ways makes life easier for the owners of famous marks, who now need only prove likelihood of dilution rather than actual dilution, but it also clarifies a number of "fair use" exceptions to infringement.  Among these fair uses is parody, which essentially takes legal notice of our collective sense of humor.  

Although Louis Vuitton brought its action against Haute Diggity Dog well before the new law took effect, it requested an injunction against sales of Chewy Vuiton merchandise.  Since an injunction by definition affects future rather than past action, the court concluded that the new act should apply -- and thus based its analysis of trademark dilution (including the parody defense) on new rather than old law. 

Although a parody defense can be enough to drive a trademark owner barking mad (OK, tried to resist; couldn't), it is based on the fact that our cultural referents are often commodified.  We no longer sit and tell stories around the fire; we sit around watching programs and ads on television (which Marshal McLuhan reportedly called "the campfire of the global village").  If Louis Vuitton has become cultural shorthand for high-end luxury goods, it's no wonder that the owners of cultivated canines are amused by the recursive reference. 

Does that mean that LV can't protect its trademarks against blatant copying or individuals who are simply trying to trade on the famous name?  Surely not.  But if an allegedly infringing copy makes the judge laugh, things don't look good for the trademark owner.