Putting parody and expressive works to the test

When does parody infringe and are all parodies expressive works? Anne Gilson LaLonde examines whether tests such as 'Rogers' are fit for purpose.

A lookalike for Barney the purple dinosaur—the wholesome, unnaturally cheerful character from children’s TV—was tackled, flipped, and assaulted by a sports mascot performing at an event.

The US Fifth Circuit Court of Appeals found that this was an obvious parody, mocking Barney’s relentless optimism, and held that consumer confusion was unlikely.

In trademark cases, US courts struggle to balance the right to free speech with the likelihood that consumers will be confused. If an alleged infringer’s work is a parody—poking fun at the trademark rather than simply freeriding off its renown—consumers will be less likely to believe the work is created by the trademark owner.