For the last few years, Louis Vuitton has been fighting a losing battle against My Other Bag for alleged trademark infringement of their famous handbag design (which I think is also used for other things; admittedly I don’t know much about Louis Vuitton). The case was initially disposed of by summary judgment in New York District Court, which was recently affirmed by a three-judge panel from the Second Circuit.
At every turn, My Other Bag has been victorious, but Louis Vuitton has not given up, and just a few weeks ago they filed a petition for a rehearing en banc, asking the entire Second Circuit to weigh in. As far as I know, that request has not been accepted or rejected. And, although we’re not there yet, I wouldn’t be surprised if Vuitton tries to take this all the way to the top, if need be.
My Other Bag starting selling its canvas totes in 2011. As detailed in the District Court’s opinion, the bag is supposed to be a parody similar to the “my other car is a Mercedes” bumper stickers. The whole thing is supposed to be a joke. Bags like those sold by Vuitton (and cars like Mercedes) are status symbols for many people. And there’s supposed to be this juxtaposition between the designer bag (or car) and the cheap tote (or car). I get it. And I admittedly think its (kinda) funny. Even funnier, is that Vuitton is so bent out of shape over it (as the judge stated, they “maybe cannot take a joke.”) Funny as it may be, something seems wrong.
Vuitton sued My Other Bag for trademark infringement, dilution, and copyright infringement. The judge looked at the trademark infringement and dilution allegations, which essentially included Vuitton alleging that My Other Bag was improperly using its bag design, trading off its name and cultivated goodwill, and diluting its brand value, and settled on finding for My Other Bag because its use of Vuitton’s design was parodic, a well accepted, and codified, defense in trademark law.
(As for the copyright claim, the District Court found that to be fair use; the Second Circuit didn’t overturn it, although it found the use to be more transformative than fair use. Either way, no copyright infringement.)
Parody is a legal doctrine that allows for others to act in a way that would, under most circumstances, be considered infringement. Because parody is “commentary”, and not purely commercial, infringement in avoided (apparently). There are steps to follow when determining parody, but essentially what is needed is the “parody must convey two simultaneous — and contradictory — messages: that it is the original, but also that it is not the original and is instead a parody.” When done properly, a person will see the parodic use, and think that it so resembles the original, to the extent that it is the original, but, with some level of scrutiny, be able to tell that it is not the original, and is actually an imitation and joke about the original.
The District Court found that, yes, My Other Bag’s use of a design similar to Vuitton’s is in fact a parody, and does not constitute infringement. The Court of Appeals, agreed, and as I stated, Vuitton is still trying to fight this. Their main point is that this is not proper parody because My Other Bag is not commenting on Vuitton, but is actually just using Vuitton’s goodwill to comment on high-class culture, generally, and to draw attention to its own bags. Parody requires that, when another company’s mark is used, it must be used to make a comment about that company. I see Vuitton’s point, but it has now been made twice (maybe more times), and it appears to be a losing argument.
As for parody, I get it. I understand the point of and need for it. We as a society cherish free speech. One’s ability to comment, to have an opinion, and to voice that opinion, is important. Also important, is competition in the marketplace. The purpose of trademark law is not to provide pure monopolies to businesses, or to protect speech, but rather to encourage competition, which is partly done by providing a “monopoly” of sorts. But that monopoly has limits.
So, when considering our love for free speech and the purpose of trademark law, parody makes sense. Still, something seems wrong about My Other Bag’s ability to sell and make a profit off the work and goodwill of others. Without “parodying” (if that is in fact what they are doing) these famous, designer bags, the totes would be just another tote. Without the goodwill and fame of the designer bags, My Other Bag is nothing.
Over time, trademark law has viewed parody as fair. Whether because it’s good for competition, or because it supports our free speech ideals, or maybe a combination of the two, parody has cemented itself in trademark law.
Although I’m sure My Other Bag wants to be done with this dispute, I hope it carries all the way to the top.