When it rains, it pours. Via Andrew Sullivan (and reported here too) a report that Volkswagen is going to sue— in the UK — the pair who made that tasteless mock commercial circulating around the Internet in which a suicide bomber detonates himself but the explosion is contained by the well-built Volkswagen. I don’t know anything about UK law on parodies, and I am not sure whether this would be a trademark suit for use (or dilution?) of the Volkswagen trademarks (which would probably lose here) or a copyright suit based on some similar commercial which I have not seen (which theoretically could win here). (See our discussion on what does and does not qualify as a parody here.)
If you’re Volkswagen, you may have to sue first and ask questions later. There are times when, as long as there is a colorable claim (i.e., the markholder does not believe the complaint violates legal ethics or Federal Rule 11 as frivolous) — even though it’s not a likely winner, you’ve got to file to protect the brand and make a public statement where there’s the risk of public outrage. The lawsuit is a way to distance yourself from the use of the mark.
That’s when it’s not frivolous. And it’s when we’re talking about a morally outrageous use of the mark, as opposed to a commercially or politically, religiously, philosophically competitive use — or one where you just plain resent that your property is part of the picture and you weren’t cut in on the profits.
Slippery slopes? That’s why lawyers are paid to exercise judgment.
UPDATE: Hm. Maybe the whole story was a dud:
After a week of prevarication [sic], the car giant has decided to go ahead and sue the people behind the advert on the grounds that it was damaging its reputation around the world and falsely linked the VW with terrorism.
“We are taking legal action but because it’s early stages we cannot comment further,” a Volkswagen spokesman said.
But the company privately admitted that it cannot locate Lee and Dan, the London based advertising creative partnership who dreamed up the film, which has been seen around the world via the internet.
“We are prepared to pursue the two individuals but need to locate them to ensure the success of our legal claim,” the company said in a private memo, details of which have been obtained by MediaGuardian.co.uk.