Of Unicorns and Pigs: The Limits of Trademark Infringement

Trademarks create an association in the minds of consumers between specific goods and the source of those goods.  Because of this, it’s important for trademark owners to police their marks for misuse by competitors who would profit from the goodwill created by the owner.  A common way of enforcing one’s

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trademark rights is through the cease and desist letter.  But some uses, such as parody, may be a defense to infringement and actually decrease the likelihood of confusion.  When the trademark owner ignores this difference and proceeds with a cease and desist letter, the result can be both humorous and embarrassing.

Such was the case with a recent dispute between the National Pork Board and Geeknet, Inc., an online store specializing in novelty items. On April 1, 2010, Geeknet began offering “Radiant Farms Unicorn Meat” for sales on its website www.thinkgeek.com, using the slogan, “Unicorn – the new white meat.”  A little over a month later, ThinkGeek received a 12-page cease and desist letter on behalf of the National Pork Board, owner of the internationally registered trademark “The Other White Meat”. In a tongue-in-cheek response in keeping with the April Fool’s Day spoof, Scott Kauffman, President and CEO of Geeknet, issued a public apology to the National Pork Board, stating, “It was never our intention to cause a national crisis and misguide American citizens regarding the differences between the pig and the unicorn.  In fact, ThinkGeek’s canned unicorn meat is sparkly, a bit red, and not approved by any government entity.”

According to U.S. Trademark Manual of Examining Procedure (TMEP), parody per se is not a defense to a claim of likelihood of confusion, but there are confusing and non-confusing parodies.  A true parody actually decreases the likelihood of confusion by creating a distinction in the consumer’s mind between the actual product and the joke.  Unlike a parody mark used on the same goods sold in the same channels of trade (see our earlier blog post, Trademarks & Parodies: The North Face versus The South Butt) the fact that unicorns are mythical creatures makes it less likely that anyone would confuse ThinkGeek’s non-edible novelty item with the edible meat promoted by the National Pork Board.

Parody marks can often be used as an effective way to capitalize on the goodwill in someone else’s trademark. But like the famous quote about cigars attributed to Sigmund Freud, sometimes a parody is just a parody.


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