Business and Tax Lawyer Blog

Logorama, which recently won an Academy Award for Best Animated Short Film, tells a story using between 2,500 and 3,000 logos and trademarks.  It appears that the creators did not get authorization to use the marks for the project. So far, no explicit objections have been made.  The video is currently blocked from at least one website due to a copyright claim by Autour de Minuit, the production company behind Logorama.

Even if brand owners do object, Logorama's creators could have protection under the fair use doctrine.

One purpose of a trademark is to enable consumers to identify the origin of products or services, thereby enabling better buying decisions. Infringement occurs when party B uses party A's registered trademark in a way that causes a likelihood of confusion. In this manner, a customer might mistakenly purchase party B's product, believing party A manufactured it.

Fair use is a defense to trademark infringement where the important question is whether a likelihood of confusion exists. Courts in different jurisdictions analyze the doctrine differently. Some courts, to varying degrees, borrow concepts from copyright law and consider whether the use of an identical or similar mark for parody and/or satire purposes creates a likelihood of confusion. Parody is use of a mark to comment on the original brand owner whereas satire is use of a mark to comment on an unrelated subject. As with copyright issues, some trademark cases distinguish parodies from satires and have held that fair use applies to the former but not the latter. Other jurisdictions stress the likelihood of confusion test regardless of "whether the butt of the joke is society at large, or the trademark owner in particular."

Whether Logorama's use of the marks is a parody or satire is debatable. On one hand, use of the various logos appears to critique society's reliance on name brands and manufactures' reliance on product placement, which  would constitute a satire. One the other hand, some use of the marks is directed at the original brand, likely constituting a parody. According to the jurisdictions drawing a distinction between parody and satire, fair use would more likely apply where the film targets the original brand. Referring back to the basic test of infringement, however, whether the use of any mark is a parody or satire may not be as important when viewed through the prism of likelihood of confusion. The fact that Logorama features so many marks should not contribute to a likelihood of confusion because no single brand stands out to improperly suggest sponsorship or an indication of origin.