Copying is the Highest Form of Flattery?

Louis Vuitton’s parent company LVMH filed a trademark case nearly two years ago against a tote bag company called My Other Bag. My Other Bag was creating canvas totes, which featured the Louis Vuitton iconic patterned bag on the side.

LVMH has recently lost its legal battle against My Other Bag. The New York state judge Jesse M. Furman has ruled in favour of My Other Bag stating that the illustration on the totes were clearly a parody and are therefore not a trademark infringement.

Judge M. Furman remarked that “MOB’s use of Louis Vuitton’s marks in service of what is an obvious attempt at humour is not likely to cause confusion or the blurring of the distinctiveness of Louis Vuitton’s marks; if anything it is likely to reinforce and enhance the distinctiveness and notoriety of the famous brand.”

The defence of a parody is a strategic defence available in the States against a claim of trademark infringement. This defence asserts that there is no likelihood of confusion because it will be recognised by consumers that there is a parody and hence will not be taken seriously.
In Australia, parody is not a defence to a trade mark infringement, but “Fair dealing” for the purposes of parody can be used as a defence to copyright infringement.

In some cases such as this one it may be better for businesses to accept the implied compliment and look at the humorous side than to sue.