Re: T-shirt resale

On Fri, 5 Feb 1999, Randy Nieuwsma <nieuwr[_at_]legacy.calvin.edu> wrote:
>
> On Thu, 04 Feb 1999, Carol Shepherd <shepherd[_at_]arborlaw.com> wrote:
> >
> > Obviously the artwork itself is not being reproduced, so there isn't a
> > copyright infringement in that sense, although there is probably the
> > unauthorized making of a derivative work by altering the original
> > t-shirt, under the Mirage case rationale, if your friends are within
> > the purview of the 9th circuit.
>
> Where are the limits on extremes? Must I remove the "Chevy"
> bumper stick from the tailgate of my Ford truck before I sell
> it? (It slightly covers one of the letters).

I dived into McCarthy on Trademarks because this was bothering me, and I now think I got it completely wrong on trademarks. There is definitely a line of caselaw that exempts "speech" and "parody" uses of a trademark from dilution, tarnishment, and false advertising claims. Eg, from s. 24.16[2]:

   "...Tarnishment caused merely by an editorial or artistic parody    which satirizes plaintiff's product or its image is not actionable    under an anti-dilution statute because of the free speech protections    of the First Amendment... 'If the anti-dilution statute were    construed as permitting a trademark owner to enjoin the use of his    mark in a noncommercial context found to be negative or offensive,    then a corporation could shield itself from criticism by forbidding    the use of its name in commentaries critical of its conduct.' "    (citing LL Bean v Drake Publishers, 811 F2d 26 (CA1 1987).

This analysis not only applies to the t-shirt example, I believe it applies to the "FAMOUSCOMPANYSUCKS.COM" types of domain disputes as well.

-- 
Carol Ruth Shepherd
Arborlaw Associates PLLC
Ann Arbor, Michigan USA
+1 734 668 4646 tel   +1 734 663 9361 fax
business, technology, entertainment and new media law
shepherd[_at_]arborlaw.com