Anheuser-Busch, Inc. v. L & L Wings, Inc.
1992 WL 72007, 962 F.2d 316 (1992)
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Rule of Law:
A parody of a registered trademark does not constitute trademark infringement if it is not likely to cause confusion among ordinary consumers as to the source or sponsorship of the goods. The determination of likelihood of confusion is an inherently factual question for a jury, which must consider the allegedly infringing use in its entirety and may reasonably find a parody is not confusing despite intentional imitation for humorous effect.
Facts:
- In 1987, student Michael Berard designed a T-shirt as a souvenir for Myrtle Beach, South Carolina.
- The T-shirt design intentionally imitated the overall visual format, color scheme, and layout of the registered Budweiser beer can trademark owned by Anheuser-Busch.
- The design replaced all verbal content from the Budweiser label with beach-themed parodies.
- For instance, 'Budweiser' was replaced with 'Myrtle Beach,' 'King of Beers' became 'King of Beaches,' and beer ingredients were replaced with 'Choicest Surf, Sun, and Sand.'
- Berard's company, Venture Marketing, Inc., manufactured the shirts.
- A retail chain, L & L Wings, Inc., purchased and sold over 20,000 of these T-shirts in its beach stores.
- Anheuser-Busch uses its registered Budweiser trademarks on its own line of T-shirts and other apparel.
Procedural Posture:
- Anheuser-Busch, Inc. sued Venture Marketing, Inc. and L & L Wings, Inc. in federal district court for trademark infringement.
- Following a three-day trial, the jury returned a verdict in favor of the defendants, Venture Marketing and L & L Wings.
- Anheuser-Busch filed a motion for judgment notwithstanding the verdict (j.n.o.v.).
- The district court judge granted Anheuser-Busch's motion for j.n.o.v., setting aside the jury's verdict and entering judgment for Anheuser-Busch on the issue of liability.
- Venture Marketing and L & L Wings, as appellants, appealed the district court's grant of j.n.o.v. to the U.S. Court of Appeals for the Fourth Circuit.
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Issue:
Does a T-shirt design that parodies a famous trademark by mimicking its non-verbal design elements but replacing all text with different, humorous, location-specific content create a likelihood of consumer confusion that constitutes trademark infringement under the Lanham Act?
Opinions:
Majority - Wilkinson
No. A T-shirt design that parodies a famous trademark does not create a likelihood of consumer confusion where a reasonable jury could find that conspicuous differences between the products would prevent an ordinary consumer from being confused as to the product's source or sponsorship. The determination of likelihood of confusion is an inherently factual issue for the jury, which is uniquely positioned to evaluate how an ordinary consumer would perceive a product. Here, the jury was entitled to find that the T-shirt's complete replacement of all Budweiser-related text with Myrtle Beach-specific text and slogans created sufficient differences to avoid confusion. The court must analyze the T-shirt 'in its entirety' rather than isolating the non-verbal similarities. While parody necessarily involves intentional imitation, its purpose is to create a humorous association, not to confuse the public, and an effective parody can simultaneously evoke the original mark while dispelling any likelihood of confusion.
Dissenting - Powell
Yes. A T-shirt design that intentionally copies the distinctive non-verbal elements of an exceptionally strong trademark creates a likelihood of confusion as a matter of law, and this infringement is not excused by adding parodying text. The Budweiser mark is one of the strongest in the world, the parties' goods (T-shirts) and retail channels (beach stores) are identical, and the defendant admitted to intentional copying, which creates a presumption of confusion. The parody defense is unpersuasive because the T-shirt does not ridicule Budweiser or offer social commentary; it merely plays on words in a humorous way that is consistent with Anheuser-Busch's own marketing themes. This use is a 'merchandising short-cut' that benefits from the drawing power of the senior user's mark and is precisely what trademark law is meant to prevent.
Analysis:
This decision reinforces the high degree of deference appellate courts give to jury findings on the factual question of 'likelihood of confusion' in trademark law. It establishes that parody can be a powerful argument against a finding of infringement, not as a separate affirmative defense, but by demonstrating that the humorous differences in the parody itself make consumer confusion less likely. The case instructs lower courts to analyze the 'total effect' of the allegedly infringing work on the consumer, rather than dissecting it into similar and dissimilar parts. This precedent protects creators of commercial parodies by allowing juries to find that an obvious joke does not infringe, even on a very famous mark sold in the same market.
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