Trademark Law and the Prickly Ambivalence of Post-Parodies

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