Anheuser-Busch, Inc. v. Balducci Publications
28 F.3d 769 (1994)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A parody that uses another's registered trademarks may constitute trademark infringement under the Lanham Act if it creates a likelihood of consumer confusion as to its source, sponsorship, or approval. The First Amendment does not provide absolute protection for such a parody, especially when the likelihood of confusion is not necessary for the parody's communicative purpose.
Facts:
- Anheuser-Busch owns several federally-registered trademarks for its Michelob family of beers, including the name 'Michelob' and the 'A & Eagle Design.'
- Balducci Publications publishes a humor magazine called Snicker, owned by Richard and Kathleen Balducci.
- The back cover of the April 1989 issue of Snicker featured a mock advertisement for a fictitious product called 'Michelob Oily.'
- The ad used Anheuser-Busch's trademarks, including a nearly identical logo and the slogan 'ONE TASTE AND YOU’LL DRINK IT OILY,' a play on Michelob's 'ONE TASTE AND YOU’LL DRINK IT DRY.'
- The ad's graphics depicted a can resembling a Michelob Dry can pouring oil onto a fish and an oil-soaked version of the A & Eagle logo, with the eagle exclaiming 'Yuck!'
- Richard Balducci stated he created the parody to comment on environmental pollution, specifically a recent Shell oil spill in the Gasconade River, a water source for Anheuser-Busch.
- The ad contained a disclaimer in extremely small text running vertically along the side of the page, identifying it as an editorial.
- Balducci continued to sell back issues of the magazine featuring the ad.
Procedural Posture:
- Anheuser-Busch, Inc. sued Balducci Publications and its owners in the United States District Court for federal and state trademark infringement, dilution, and unfair competition.
- After a bench trial, the district court entered judgment in favor of Balducci, finding no likelihood of confusion because it applied a higher standard due to First Amendment concerns.
- Anheuser-Busch, Inc., as appellant, appealed the judgment to the United States Court of Appeals for the Eighth Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a parody advertisement that creates a likelihood of consumer confusion as to its origin, sponsorship, or approval violate the Lanham Act, even if the parody is intended as social commentary protected by the First Amendment?
Opinions:
Majority - Gibson, J.
Yes, a parody advertisement that creates a likelihood of consumer confusion violates the Lanham Act. The district court erred by conflating the First Amendment analysis with the likelihood of confusion analysis and applying an improperly high standard to Anheuser-Busch. A de novo review using the six SquirtCo factors demonstrates a likelihood of confusion: the trademarks are strong, Balducci used them with little alteration, the ad's placement on the back cover is a common location for genuine advertisements, Balducci was indifferent to potential confusion (as shown by the virtually undetectable disclaimer and use of the ® symbol), and survey evidence showed significant actual confusion among consumers. While parody is protected by the First Amendment, this protection is not absolute and must be balanced against the public interest in avoiding consumer confusion. The confusion created by Balducci's ad was wholly unnecessary to its satirical purpose, as it could have been avoided with an obvious disclaimer, more significant alterations to the marks, or a different placement. Because the ad fails to convey that it is not the original, it is vulnerable under trademark law.
Analysis:
This case is significant for clarifying the tension between trademark protection and First Amendment rights in the context of parody. It establishes that a parodist's right to free expression is not a complete defense to a trademark infringement claim. The court's two-step approach—first assessing the likelihood of confusion under traditional trademark principles, then balancing free speech interests against the need to prevent that confusion—provides a crucial framework for future cases. The decision serves as a warning to creators of commercial parody that they must take reasonable steps to ensure consumers are not confused, especially when the parody's message could be conveyed with less risk of confusion.
