Trademark vs. Copyright

This is an interesting article about a lawsuit filed back in the 1980’s by the Anheuser-Busch beer company against the creators/publishers of a St. Louis based humor magazine very much in the MAD vien called Snicker. Snicker ran a parody ad on the back of one of their issues poking fun at Anheuser-Busch’s “Michelob Dry” beer ads with a “Michelob Oily” spoof ad. This was also a callout to a the 1988 Shell Oil Co. oil leak in Vienna, Missouri that sent millions of gallons of oil into a local river. The leak caused several Anheuser-Busch factories to have to halt production due to possible water supply contamination. So, this parody served double duty as a shot at Anheuser-Busch and an editorial comment about an environmental disaster.

The article to goes into more detail, but in the end Anheuser-Busch won their case on appeal, as the courts found that Snicker infringed on and “diluted” their trademark. So why was Snicker on the hook for this, when MAD constantly does ad parodies in the same manner and has never been successfully sued over trademark infringement?

The plaintiff pointed out a number of concerns over the piece, but the folks at Snicker made one big mistake that MAD never made that really doomed them. Snicker used the actual name and logo of the product “Michelob”, and included several images of actual product labels with only “Oily” replacing “Dry”. That is too close to a direct use of a trademark, and the courts agreed that and other factors were enough to cause confusion with readers as to if this was an actual Anheuser-Busch product, or at least was sanctioned by Anheuser-Busch. Had Snicker changed “Michelob” to “Michelube” or some other spoof name, and more significantly changed the labels they included, they probably would have been ok. Among the other issues the plaintiff pointed out was that the ad was placed on the back page of the issue, a place where readers would expect to see a real ad, and that the tiny disclaimer placed vertically on the edge of the piece that read “Snicker Magazine Editorial by Rich Balducci…Thank goodness someone still cares about quality of life” was so small as to be virtually undetectable.

After having the case initially found in their favor, Snicker had the decision reversed on appeal by the Eighth Circuit, and further appeal made it to the Supreme Court, who upheld the Eighth Circuit’s decision without comment.

This case is a good example of the different ways trademarks and copyright are treated by the law. Unlike copyright law, there is no “parody” defense to trademark infringement or dilution. Much of the determination as to the use of trademarks in parody is based on if there is an confusion as to if the owners of the trademark are actually involved in whatever the parody piece is about. Significantly changing the name and images of a trademark would protect the parodist as it would lessen the chance of that confusion. That’s what MAD changes the name of a product in their spoof ad from “Breck” shampoo to “Bleech” shampoo.

In the end the courts found that the was not enough effort by Snicker to prevent confusion by readers that this ad was a parody and not real, and that the effectiveness of the message of the parody would not have been lessened if they had made it more obvious that it was a spoof. Both true, IMO. In fact the piece would have been funnier if they’d come up with a good spoof name rather than use “Michelob”.

Fortunately for the folks at Snicker, Anheuser-Busch didn’t demand compensation. In fact Anheuser-Busch paid Snicker $10,000 to cover the costs to destroy the copies of the issue. Apparently in the very next issue, Snicker ran a parody “Busch” ad. I guess they did that one right, since I can find no further lawsuits against them by Anheuser-Busch!