Reverse Dilution: The Irony in Moschino’s “Parody”
Jeremy Scott, the designer for luxury brand Moschino, debuted his fall 2014 collection featuring famous trademarks including Budweiser, McDonalds, and Hersheys. This begs a classic trademark question … Did Moschino/Jeremy Scott infringe on these famous marks?
Analyzing the potential legal issues initially, it seems likely that his collection would not cause actionable consumer confusion. For example, a consumer shopping the collection either at high-end department store or at a Moschino boutique would not confuse the source of the products (i.e. Moschino) deriving from Budweiser, McDonalds, and/or Hersheys.
However, a claim for trademark dilution seems more probable. Trademark dilution allows the owner of a famous mark (e.g., McDonalds, Coca-Cola, etc) to prevent others from using the mark in ways that would diminish its uniqueness (i.e. its source identifying qualities) even when the products do not compete with another. Therefore, McDonalds would allege that when Moschino featured McDonald’s Golden Arches in the fall 2014 collection, Moschino diluted McDonald’s mark. Yet a more interesting question remains … Did Moschino dilute by blurring or dilute by tarnishment?
Blurring occurs when an infringer uses a famous mark to signify their product, causing the consumer to begin associating the famous mark with other products besides the preexisting association. This eventually “dilutes” the mark, especially when the marks have contrasting meanings. McDonald’s has a strong argument here. McDonald’s without a doubt owns a distinctive and famous mark that consumers largely, if not exclusively, associate with reliable, fast, and cheap food. When considering the similarity between the marks used, Moschino would have trouble disproving dilution.
Alternatively, tarnishment occurs when an infringer’s use of the mark creates negative associations. This is an unlikely approach given that Mr. Scott’s collection welcomed cheaper brands into the coveted echelon of luxury. Simply, it would be contradictory to common sense to allege that luxe brand association “tarnished” McDonalds (i.e. low end restaurant chain). Interestingly, luxury brands would toot a different horn if the roles were reversed (i.e. McDonalds using Chanel’s interlocked Cs).
Ultimately, if McDonalds or any other brand featured in Mr. Scott’s collection were to pursue a dilution by blurring action against Moschino, Mr. Scott could still plead the parody defense. While the defense is generally unpredictable, it may have particular merit here. First, well-known designers are often awarded broad creative licenses, particularly designers such as Mr. Scott with unique flare. Second, the collection titled “Fast Fashion – Next Day After The Runway” debuted in stores the following day, parodying the collection to the fast food culture. Lastly, when asked about his inspiration, Mr. Scott explained that he wanted the clothes “to make [the consumer] happy.”
In sum, despite Moschino’s blatant use of McDonalds famous mark, I would advise Mr. Scott to rest assured that McDonalds will not sue Moschino for trademark infringement. Unbeknownst to Mr. Scott, however, parody does not protect him as much as the irony in his parody, for McDonalds gets to free ride Moschino’s luxury brand without even infringing. How ‘bout them arches?