The online retailer ThinkGeek is known for having some pretty bizarre items, but none are wackier than the annual April Fool’s Day products. This year’s lineup included Canned Unicorn Meat, billed as “the new white meat.” Below a picture of a block of sparkly meat, the product page explains how a group of Irish nuns care for aging unicorns and “fatten them on a diet comprised entirely of candy corn.” A diagram of the cuts of unicorn, including “magic,” “giggles,” and “rainbows,” completes the page.
The product led the National Pork Board (NPB), owners of the trademark THE OTHER WHITE MEAT, to send a cease and desist letter warning ThinkGeek of possible infringement. The letter objected to the product’s slogan—“Pâté is passé. Unicorn - the new white meat.” It also noted that other websites, in linking to Canned Unicorn Meat, had used the phrase “The Other White Meat.”
THE OTHER WHITE MEAT has been in use for over twenty years, with over $550 million spent on advertisements using the slogan. A 2000 study found it to be the fifth most well-known advertising slogan in the United States. Based on this and other evidence, the Patent and Trademark Office recently found the slogan to be a famous mark and refused to allow a salmon distributor to register THE OTHER RED MEAT because it would cause dilution by blurring the distinctiveness of the NPB’s mark.
In a blog post, ThinkGeek asserted that it has “nothing to worry about--this kind of use is protected as a parody.” Confident in its legal position, ThinkGeek had a field day at the NPB’s expense, posting a portion of the letter—which it called the “best-ever cease and desist”—and implying that the NPB’s lawyers thought the product was real. ThinkGeek’s parent company even issued a Press Release, apologizing for “caus[ing] a national crisis and misguid[ing] American citizens regarding the differences between the pig and the unicorn.” Almost immediately, bloggers got in an the action, exclaiming that “the pork people had no sense of humor” and “weren’t in on the joke.”
However, parody is not a defense to infringement per se, but rather an argument that there is no likelihood of confusion—a necessary element of infringement—because consumers will know that the parody is a joke. A parody, though, must make fun of or criticize the trademark or its owner; using a trademark to make fun of something else is not a parody. Thus, to be a parody, Canned Unicorn Meat must be meant as commentary on THE OTHER WHITE MEAT or the NPB. If Canned Unicorn Meat does not qualify as a parody, ThinkGeek may face liability for infringement or possible dilution of the NPB’s famous mark. And there would be nothing magical about that.
- Suzanne Wilson and Karen Otto
