Reminder: The Parody Defense to Trademark Infringement is Tricky
Parody is a tricky defense to cannabis trademark infringement, or to any infringement allegation whatsoever. For some background on this, check out our posts here, here and here. Still, people riff off established trademarks all the time, and when pursued, they often raise the parody defense. In the cannabis context, this happened most recently in a lawsuit brought by the City of New York.
The Trademark Infringement Case
Last week, a federal court granted the City’s motion for a preliminary injunction against Robert Lopez. Mr. Lopez is a clothing designer who produces merchandise under his brand name, New York Cannabis. The City had sued Lopez claiming his copycat logos infringed the City’s own trademarks and essentially amounted to counterfeiting.
Lopez principally asserted parody as a defense. To back up, parody is a type of speech protected by the First Amendment. It is a “distorted imitation” of an original work for the purpose of commenting on it. In the right circumstances, parody can be asserted as a defense to trademark infringement. In this case, the Court didn’t agree.
The Preliminary Injunction Test
As in the Ninth Circuit, a preliminary junction can be issued in the Second Circuit if the moving party