NIKE, Inc. v. "JUST DID IT" Enterprises
6 F.3d 1225, 1993 WL 382494 (1993)
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Rule of Law:
A parody of a trademark is not an affirmative defense to infringement but is instead a factor to consider in the likelihood of confusion analysis. A successful parody does not cause confusion because it simultaneously communicates that it is the original mark but also that it is not, thereby amusing the consumer rather than confusing them as to the source or affiliation of the product.
Facts:
- Nike, Inc. manufactures and markets apparel using its famous registered trademarks, including the word NIKE, the 'swoosh' design, and the slogan 'JUST DO IT.'
- Michael Stanard, a commercial artist, created and sold t-shirts and sweatshirts under his enterprise named 'JUST DID IT Enterprises.'
- Stanard's apparel featured a swoosh design identical to Nike's but used the word 'Mike' instead of 'Nike.'
- Stanard marketed the apparel primarily through mail-order brochures sent to individuals named Michael.
- Approximately two-thirds of the purchasers of Stanard's apparel were named 'Mike.'
- Stanard admitted that his intent was to create a pun or joke on Nike's image, such that a person viewing from a distance might initially think the shirt read 'NIKE.'
- No evidence was presented showing that any consumer was ever actually confused into believing Stanard's products were made by or affiliated with Nike.
Procedural Posture:
- Nike, Inc. sued Michael Stanard in the U.S. District Court for trademark infringement.
- Nike filed a motion for summary judgment.
- The district court granted Nike's motion for summary judgment, finding that Stanard's products created a likelihood of confusion as a matter of law.
- Stanard, as the appellant, appealed the district court's grant of summary judgment to the U.S. Court of Appeals for the Seventh Circuit.
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Issue:
Does the sale of apparel bearing a parody of a famous trademark create a likelihood of consumer confusion as a matter of law, therefore constituting trademark infringement, when the parody uses a nearly identical design but a slightly different word?
Opinions:
Majority - Manion, Circuit Judge.
No, the sale of apparel bearing a parody of a famous trademark does not create a likelihood of confusion as a matter of law; rather, it presents a question of fact for a jury. Parody is not an affirmative defense but an integral factor in the likelihood-of-confusion analysis. A successful parody must convey two contradictory messages: that it is the original, but also that it is not. If it succeeds in conveying the second message, it creates amusement rather than confusion. Here, numerous disputed factual issues prevent summary judgment. A jury could find that differences in marketing channels (mail-order vs. mass retail), Stanard's intent to parody rather than to palm off his goods, the complete lack of evidence of actual confusion, and a consumer's ability to discern the difference at the point of purchase outweigh the similarities in the marks and products. Therefore, whether consumers are likely to be confused is a question for the jury to resolve.
Analysis:
This decision clarifies that parody is not a separate legal shield but is integrated directly into the core trademark infringement test of 'likelihood of confusion.' It reinforces that the infringement analysis is highly fact-specific and that summary judgment is often inappropriate in parody cases, even where the marks are visually very similar. The ruling strengthens the position of parodists by emphasizing that an intent to amuse rather than deceive is a key factor weighing against a finding of confusion, thereby protecting humorous or critical commentary that uses trademarked imagery. It establishes that the relevant point of potential confusion is that of the purchaser at the time of sale, not a casual observer from a distance.
