Whistle while you cringe

Originally posted 2009-03-20 11:06:17. Republished by Blog Post Promoter

Dave Wieneke asks: Can the Seven Dwarfs of Menopause not be infringement?

Note that this (below) is the version up on Dave’s site.  There are others out there, relatively less safe for work.  But maybe not misspelling psycho.  Or dwarfs.  Not that I’m going to bring that up, exactly, you know.

Its off the handle we go!

Hi ho, hi ho, it's off the handle we go!

Anyway, yeah, I think they can not be.  Um, or be not.

Is it a parody?  Probably not; the target of the fun is not the dwarfs.  But is a trademark use being made of them?  (If so, by whom?  Well, Dave does mention this Suzanne Somers angle… but those are not Disney’s protected dwarfs!)

Bottom line:  Is there a LIKELIHOOD OF CONFUSION?  McCarthy teaches:

Some parodies will constitute an infringement, some will not. But the cry of “parody!” does not magically fend off otherwise legitimate claims of trademark infringement or dilution. There are confusing parodies and non-confusing parodies. All they have in common is an attempt at humor through the use of someone else’s trademark. A non-infringing parody is merely amusing, not confusing.

I’m not confused, at least not by the dwarfs.  Who would be?  And, after all, Dave asks, “Is there any way Disney can’t be so uncomfortable about this?”  Well, as the Ninth Circuit (cited by the Professor) said in connection with the ill-advised Carol Burnett case:

[T]he more distasteful and bizarre the parody, the less likely the public is to mistakenly think that the trademark owner has sponsored or approved it.

It’s probably not a parody, but I don’t think anyone’s making any mistakes here.  Hi ho.

UPDATE: In the comments, Scott gently points out the copyright thing, which seems, he said, pretty cut and dried.  In fact there was nothing in Dave’s original post that said “trademark infringement,” though that’s what I was thinking.

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Author:Ron Coleman

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2 Responses to “Whistle while you cringe”

  1. March 20, 2009 at 1:05 pm #

    Whether or not it’s trademark infringement, it looks like a pretty cut and dry case of copyright infringement in the image(s) of the dwarfs. That’s a better bet than a trademark infringement action. And we know Congress won’t let those old Disney copyrights expire…

  2. March 21, 2009 at 9:30 pm #

    Well, that’s not a bad point! I should have addressed copyright in the post. You are almost certainly right.

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