Parody or infringement or neither. How can I tell?

[MetaJeffB]

What is the name of your state?DE

I am not sure how to determine the difference between trademark infringement and permitted use due to parody and neither of these. Let me provide an example to better explain.

Lets say I were to make a plaster paperweight that was about 8" in diameter that looked like a giant-sized Life Saver mint candy. The paperweight would have raised lettering that even read "LIFE SAVER". As there are many different products on the market that use the "Life Saver" name, from pool safety devices to security systems, would my offering a "LIFE SAVER" paperweight be infringing, a parody, or simply permissible?

Would that answer be different if my paperweight also had a peppermint aroma?

By the way, the item would be intended to be given as a mimento for someone that had done someone a favor or such.

I appreciate any thoughts on this topic.

Thank you for your time.

 

[BelizeBreeze]

What is the name of your state?DE

I am not sure how to determine the difference between trademark infringement and permitted use due to parody and neither of these. Let me provide an example to better explain.

Lets say I were to make a plaster paperweight that was about 8" in diameter that looked like a giant-sized Life Saver mint candy. The paperweight would have raised lettering that even read "LIFE SAVER". As there are many different products on the market that use the "Life Saver" name, from pool safety devices to security systems, would my offering a "LIFE SAVER" paperweight be infringing, a parody, or simply permissible?

Would that answer be different if my paperweight also had a peppermint aroma?

By the way, the item would be intended to be given as a mimento for someone that had done someone a favor or such.

I appreciate any thoughts on this topic.

Thank you for your time.

Trademark infringement and not a very good example.

 

[MetaJeffB]

About the example...

Sorry you didn't like the example. Unfortunately, this is exaclty something I was thinking about doing.

Can you explain what makes it infringement vs. parody vs. being its own unique product?

Here's where I could argue for any of these possibilities:
Infringement because it resembles a TM product
Parody because it looks like a TM product but does not compete with that product. Furthermore, it is a humorous exageration of the item it parodies.
Niether because it is a unique product that performs its own function. It just happens to be called "Life Saver" rather than "Plaster Ring Paperweight".

Please help me understand why two of these three possibilities are not correct.

 

[BelizeBreeze]

I don't do arguments. If you didn't like the answer then produce the product and make your arguments in front of a Federal Judge.

 

[MetaJeffB]

I don't do arguments. If you didn't like the answer then produce the product and make your arguments in front of a Federal Judge.

Argument? I think not. I am much better at arguing if that's what I am out to do.

All I asked for was an explanation of your opinion. The simple reply that you gave did not provide me any greater understanding of the laws on this issue. I am wanting to be able to come to some of my own conclusions on similar ideas in the future, rather than ask here on freeadvice.com everytime.

 

[divgradcurl]

The problem is, whether or not something is a parody is not a simple, cut-and-dried question, and the determination is very fact dependent. At a minimum to avoid infringement, the parody must be a parody of the trademarked object it is using elements from, and only uses as much of the original work as needed and no more. Google Campbell v. Acuff-Rose Music to read the key case on parodys and trademarks.

 

[MetaJeffB]

The problem is, whether or not something is a parody is not a simple, cut-and-dried question, and the determination is very fact dependent. At a minimum to avoid infringement, the parody must be a parody of the trademarked object it is using elements from, and only uses as much of the original work as needed and no more. Google Campbell v. Acuff-Rose Music to read the key case on parodys and trademarks.

First, thank you providing the reference. I have read through a the rulings and appeal, as well as various commentary.

Based on my "Life Saver" example, I guess I can see how far from a cut-and-dried answer it is. Because one might first say that because my product would be commercial in nature, the parody / fair use argument would not apply. However, from another perspective, the fact that the Life Saver candy is primarily just that - candy. The fact that it is a ring with the words "Life Saver" imprinted on it and is is secondary. In my paperweight, the primary elements are that it is a large ring with "Life Saver" printed on it and, should it even have a mint aroma, it does not have commercial value in their candy market.

Why must the law be sooo confusing?!?!

Additional comments are still welcomed.