2016] RECONSIDERING PARODIES 319
must imitate a substantial portion of the original mark to complete two tasks
simultaneously: (1) create audience recognition and (2) inform the audience
that the work is only an imitation.4 From a First Amendment standpoint,
however, a parody is simply a creative form of expression that—at least in
theory—is protected by the parodist’s right to free speech.5
Due to these different legal meanings, an inherent dilemma is present in
the modern trademark parody. Because an effective parody copies the
trademark’s most distinctive elements,6 it is also likely—and, perhaps,
inevitable—that it will cause mark owners to suffer reputational and financial
losses.7 After facing these losses, mark owners would undoubtedly sue the
parodist for trademark infringement, trademark dilution, or even both.8 In
response to these accusations, a parodist can raise parody as a defense and
argue that his work is protected under the First Amendment’s free speech
clause. These competing interests between the mark owner and the parodist,
along with the lack of a uniform legal standard to test for infringement, form
the modern dilemma inherent in the trademark parody.9
The Eighth Circuit’s decisions demonstrate how this dilemma hinders a
parodist’s First Amendment arguments during litigation. Although the
parodist is allowed to raise parody as a defense, the Eighth Circuit has
particularly been reluctant to grant these claims because of its strict test for
trademark infringement.10 While other circuits apply more flexible models to
determine whether this defense applies,11 the Eighth Circuit has adhered
strictly to the “confusion, then balancing” test. Under this test, courts must
4. See infra notes 51–52 and accompanying text.
5. Parodies often arise in multiple contexts. For illustrative purposes, some areas that are
affected by modern parodies include: (1) sports; (2) cookbooks; and (3) politics. See Michael
Wayne Bratton, WATCH: Georgia Fans Mocked in Parody Video, FOX SPORTS (Oct. 7, 2015, 4:01 PM),
100715; Obama Sings MC Hammer’s ‘U Didn’t Build That’ (VIDEO ), HUFFINGTON POST (Sept. 17,
2012, 10:53 AM), http://www.huffingtonpost.com/2012/09/17/obama-sings-mc-hammer-u-
didnt-build-that-video_n_1890072.html; Rachel Tepper, ‘50 Shades Of Chicken’ Parodies Erotic
Novel ‘50 Shades Of Grey’, HUFFINGTON POST (Sept. 19, 2012, 4:57 PM), http://www.huffington
6. For more illustrative, concrete examples of trademark parodies, see infra Appendix A.
7. See supra notes 2–3 and accompanying text. Although parodies may confuse an
audience, this Note argues that the primary intent of a true parodist is to use the parody to
communicate a message rather than engage in unfair competition with the original mark owner.
Because a parodist often does not intend to engage in unfair competition, the Eighth Cir cuit
should reform its test to better account for a parodist’s First Amendment rights. See infra Part IV.
8. This Note also recognizes that sometimes trademark owners may sue parodists even
though they have suffered little to no direct losses. For the purposes of this analysis, however, it
is assumed that mark owners who file for infringement have an interest in the value of their marks
because they have suffered some form of loss as a result of the parody.
9. See infra Part II.B.
10. See infra Part II.B.2.
11. See infra Part II.B.1.