Trademark Law and the Prickly Ambivalence of Post-Parodies

50 Pages Posted: 18 Jun 2014 Last revised: 3 Dec 2014

Charles Colman

William S. Richardson School of Law, University of Hawai'i-Mānoa

Date Written: September 1, 2014

Abstract

This Essay examines what I call "post-parodies" in apparel. This emerging genre of do-it-yourself fashion is characterized by the appropriation and modification of third-party trademarks — not for the sake of dismissively mocking or zealously glorifying luxury fashion, but rather to engage in more complex forms of expression. I examine the cultural circumstances and psychological factors giving rise to post-parodic fashion, and conclude that the sensibility causing its proliferation is one grounded in ambivalence.

Unfortunately, current doctrine governing trademark "parodies" cannot begin to make sense of post-parodic goods; among other shortcomings, that doctrine suffers from crude analytical tools and a cramped view of "worthy" expression. I argue that trademark law — at least, if it hopes to adjudicate post-parodies' lawfulness in a meaningful way — is asking the wrong questions, and that existing "parody" doctrine should be supplanted by a more thoughtful and nuanced framework.

Keywords: trademark, trade dress, intellectual property, infringement, dilution, First Amendment, creativity, expression, political speech, parody, post-parody, satire, fashion, theory, history, consumer culture, counterculture, subversive, Hermes, Homies, Celine, Feline, Brian Lichtenberg, Zevs, ambivalence

Suggested Citation

Colman, Charles, Trademark Law and the Prickly Ambivalence of Post-Parodies (September 1, 2014). 163 University of Pennsylvania Law Review Online 11 (2014); NYU School of Law, Public Law Research Paper No. 14-45. Available at SSRN: https://ssrn.com/abstract=2451454

Charles Colman (Contact Author)

William S. Richardson School of Law, University of Hawai'i-Mānoa ( email )

2515 Dole Street
Honolulu, HI 96822
United States
8089567966 (Phone)

HOME PAGE: http://www.law.hawaii.edu/person/charles-e-colman

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