I am working on an activism campaign against a big corporation and am considering a twitter hashtag that parodies the corporation’s own presumably-trademarked phrase. I would like to know if I could be sued for coming up with my own related slogan to satirize theirs.
For example, McDonalds has presumably trademarked “I’m Lovin It” as a slogan and they frequently use the Twitter hashtag #imlovinit.
Let’s say I want to start a campaign against McDonald’s treatment of animals and to promote my campaign I use the #imNOTlovinit or #imhatingit
Or a Nike boycott could use #justdontdoit etc.
Could I be sued for using a parody hashtag like one of those examples?
Parody can be protected speech but there are several conditions. One of the big ones is that no reasonable person is likely to confuse the parody with the original.
It also has to actually be parody. Too many people claim that anything they write they find amusing to themselves is a parody. Um, no. See a dictionary.
There’s a lot of gray area. To figure out which side you are one might entail legal fees, etc.
Right now it’s unclear whether a hashtag can be a use in commerce.
Parody is established as fair use under copyright law. It’s not clear what it is under trademark law. The key consideration in trademark law is likelihood of confusion regarding the source or origin of goods or services.
And remember when it comes to “famous” trademarks, you have to not only worry about infringement but also dilution by blurring or tarnishment. “Enjoy Cocaine” in the Coca-Cola script was a parody and didn’t create a likelihood of confusion, but was found to be dilution by tarnishment.
If I was a major corporation who invested millions of dollars in an advertising campaign based on a trademarked phrase you can bet your ass I’d trademark a metric buttload of variations to that phrase.
You can claim trademark rights only in a phrase you are using in commerce as an indicator of the source or origin of goods or services.
And your use of the word “trademark” as a verb in the last sentence suggests you might hold a misconception regarding where trademark rights come from.
Trademark rights don’t come from filing a paper with the government, that is, registration. Your trademark rights come from use in commerce. To get a registration you have to prove that you already hold trademark rights through use.
If what you are suggesting when you say you would “trademark a metric buttload of variations” is that you would file a metric buttload of applications to register all these variations as trademarks, the trademark office is going say “show us that these are actually your trademarks,” that is, prove use in commerce.
As I am sure you can tell this is not my area of expertise, but surely commerce must mean, at minimum, the sales of a good or service. How does a court determine that in a scenario like the OP, where a person is advocating a particular political position, that the person is acting in commerce?
If I post on Twitter that Trump’s tax proposal is da bomb, is that commercial speech?
I ain’t no lawyer, but then again the OP ain’t looking for technical professional legal opinions.
He seems to be looking for general advice. (i.e “will I get in trouble?”)
Therefor I offer my general, non-technical and non-legal advice: You will get in trouble when a judge determines that you have pissed off a big corporation.
Even if you are perfectly legit and legal and fully in accordance with the letter of the law------ you will still be in trouble.
Here’s a not-quite-the-same-issue-but-maybe-relevant cite:
A flower shop who used the slogan “this bud’s for you”–and pissed off the Budweiser Beer company. They eventually won–but they got in a lot of trouble first.
Personal experience: in our case, the first step was a cease-and-desist letter from the parodied company.
We did an ad campaign parodying a big company’s slogan. Our client was The Little Guy going up against The Man. So it was funny… and no surprise that The Man didn’t think so. Well, it took them a few months to send us a cease-and-desist letter, and by that time the campaign was winding down. So we quit using it, no harm, no foul, no lawsuit.
The Little Guy company was so proud of that letter – they projected it up at their annual users’ meeting to resounding applause. They really felt like they’d gotten under the big dog’s skin.
