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Christopher Wilde
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Tuesday, April 15, 2008

Wal-Qaeda, Walocaust Are Not Trademark Infringements

This comes from Mark Litwak's Legal Insights for Entertainment Newsletter.  A very good newsletter for anyone that likes to keep up on the legals of the entertainment industry.  Online at marklitmak.com

Charles Smith created certain expressions such as "Wal-Qaeda" and "Walocaust" (sometimes including a smiley face) which appeared on his websites and products he sold on cafepress.com.  Wal-Mart felt that Smith was infringing on its trademarks; however, Smith disagreed and filed suit seeking a judgment that his use of the catchphrases was lawful. 

 

In Smith v. Wal-Mart Stores, Inc., a federal judge ruled that these expressions did not infringe on or tarnish trademarks held by Wal-Mart.  The expressions were successful parodies, and were not confusing to customers.  Smith disclaimed affiliation with Wal-Mart in an attempt to avoid customer confusion, and furthermore, Wal-Mart did not own a trademark for the smiley face.  The court found that no fair-minded jury could find a reasonable consumer would likely be confused by Smith's marks. 

 

Further, Smith did not dilute Wal-Mart's marks through tarnishment.  A trademark must be used in an unsavory context so as to create negative public opinion to dilute through tarnishment.  However, dilution claims only apply to commercial speech and Smith's parodies were noncommercial and thus protected by the First Amendment.  Therefore, Smith was granted summary judgment. 

 

See Smith v. Wal-Mart Stores Inc., No. 06-526, 2008 WL 760196 (N.D. Ga., Atlanta Div. Mar. 20, 2008).

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