Gangsta Big Bird and 40-toting Bert Raise Trademark Issues
Although various parodies and unauthorized uses of the Sesame Street characters have plagued Sesame Workshop over the years (including the recent Bert is Evil site), a Chicago mall store has taken the cake (or cookie, if you will), and is selling t-shirts that show the muppet characters in a rather unsettling manner.
One t-shirt shows Bert downing what appears to be a 40 ounce bottle of malt liquor inside a paper bag, with his pal Ernie brandishing a gun. Still another depicts Big Bird, complete with head-rag, and accompanied by the usual Sesame Street suspect in various hoodlum attire, near the phrase DONT MESSWITHME ST. In addition to the muppet characters, there were shirts using the Coco-Puff’s logo from General Mills (”filled with the good S#%*”), and a Kellogg’s shirt featuring Tony the Tiger over the phrase “Totally Frosted.” While the store originally hid behind the parody defense, lawyers from all companies (notified by an outraged school teacher in the area) made quick work of them (and the shirts).
Practice Pointer: While there is a split in the circuits with regard to how the parody defense should be applied in cases of trademark infringement, courts generally agree that parody is not an absolute defense to trademark infringement and is generally still subject to a confusion analysis. In copyright, it is generally accepted that the parody must — at least in part — comment upon or make fun of that from which it was taken in the first place.