Titleist Tees Up Lawsuit Against Parody Clothier Because Golf Doesn't Have A Sense Of Humor

from the fore! dept

Back in the more innocent era of the early 2010s, you may recall that we discussed a series of delightful trademark disputes between clothier North Face and a couple of guys who started a business first called South Butt (later changed to Butt Face). In those series of posts, we discussed two conflicting facts: trademark lawsuits against parody operators such as this are extremely hard to win in court… except that those same lawsuits are crazy expensive to fight, so the parody operators typically just cave and settle. It’s one of those corners of the law in which the very framework of the legal system virtually ensures that the proper legal conclusion is never reached. Yay.

It seems that North Face’s peers in the clothing industry share its disdain for these parody companies. Titleist, for instance, recently filed a trademark and dilution lawsuit against a company called I Made Bogey, suggesting that the following example of its product both will confuse the public as to its origins and will tarnish Titleist’s reputation.

Now, if you want to make the point that the hats and other items with this same branding aren’t funny, go ahead. I’m right there with you. It’s not even particularly clever. That said, it’s also not the case that anyone is going to view this stuff as anything other than what it actually is: a parody of the notably poshly-presented golf brand. In fact, the joke only works, insofar as it does at all, if a person realizes that the parody pokes fun at the polite and often Waspy culture of golf. In other words, none of this is a thing were it not easily differentiated from Titleist’s brand. For that very reason, attacks on parody like this have a heavy legal load to tow up a large mountain of precedent.

In the suit, Titleist claims both trademark infringement and dilution. For dilution to stick, it must show that I Made Bogey’s hats tarnish Titleist’s reputation or blurs its fame. For trademark infringement, however, Titleist must show that consumers would be confused by the two logos. “They would have to show that people would think Titleist is making hats” with the sexually explicit misspelling, said Tobin, the attorney. And that would be pretty difficult, she said.

And, yet, despite all of that, conventional wisdom suggests that this will all be settled out of court before the lawsuit progresses much further. The cost to fight this fight is likely to be too much for I Made Bogey to shoulder.

That doesn’t mean I Made Bogey is necessarily going to prevail, though. Trademark suits are expensive to defend, and there’s no guarantee the maker of Titties hats will come out on top. If you want a lewd golf hat, act sooner rather than later.

And, whatever your opinion of I Made Bogey’s products, that’s too bad. Taste is not really at issue when it comes to protecting parody, an important form of speech. Defenders of free speech need to be able to keep their spines when opportunities to defend speech they don’t like arise. This is certainly one of those times. Abusing trademark law and playing pretend about public confusion to silence offensive speech is an action without any virtue.

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Companies: titleist

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Comments on “Titleist Tees Up Lawsuit Against Parody Clothier Because Golf Doesn't Have A Sense Of Humor”

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Anonymous Coward says:

Trademark prohibits some speech. (I cringe expecting even that to be just trivially contradicted, though it's the topic theme!)

It’s not necessarily bad when for a company that makes physical products. Though I’d outlaw golf entirely — er, I digress already. Anyhoo, focus on the word “dilution”. This bunch of yahoos as usual has NOTHING except the “parody” by association with the Titleist brand for ANY sales. You state that yourself. They’re totally dependent on the prior association, and must therefore DILUTE the trademark.

Hole in one, which is par for me. Next case.

Stephen T. Stone (profile) says:

Re: Trademark prohibits some speech. (I cringe expecting even that to be just trivially contradicted, though it's the topic theme!)

By your logic, all parodies of existing trademarks must be outlawed, as they all depend on prior association with and “dilution” of an existing trademark. That sounds like a hell of a lot of unconstitutional prior restraint.

Anonymous Coward says:

Re: Re: Trademark prohibits some speech. (I cringe expecting even that to be just trivially contradicted, though it's the topic theme!)

I am having a hard time figuring out what tgey are parodying. Male golfers with boobs? That golf is sexist?

Mostly just looks like trying to make a buck off of someone else good name.

Stephen T. Stone (profile) says:

Re: Re: Re: Re:

The quality of the parody, such as it is, does not negate the fact that it is a parody. And unless Titleist can prove that this parody actually harms or dilutes the Titleist brand (which did not seem likely before Titleist filed the lawsuit and gave the parody a bunch of attention it did not have before), the company has no basis for blocking the parody.

But Titleist will win anyway because it has the resources to win a war of attrition.

Anonymous Coward says:

Re: Re: Prior restraint v subsequent punishment [was Trademark prohibits some speech...]

That sounds like a hell of a lot of unconstitutional prior restraint.

Why would it be —your word— “like” a prior restraint?

Alexander v United States (1993)

While we may have given a broader definition to the term "prior restraint" than was given to it in English common law,[Note 2] our decisions have steadfastly preserved the
distinction between prior restraints and subsequent punishments.

[Note 2] The doctrine of prior restraint has its roots in the 16th- and 17th-century English system of censorship. Under that system, all printing presses and printers were licensed by the government, and nothing could lawfully be published without the prior approval of a government or church censor. . . . Beginning with Near v. Minnesota ex rel. Olson (1931), we expanded this doctrine to include not only licensing schemes requiring speech to be submitted to an administrative censor for prepublication review, but also injunctions against future speech issued by judges. . . .

(Emphasis added.)

Why are you saying that an expansive theory of trademark dilution —going so far as to ban all parody— why are you saying that sounds “like” a prior restraint?

James Burkhardt (profile) says:

Re: Re: Re: Prior restraint v subsequent punishment [was Trademark prohibits some speech...]

Well, to remove a lot of unnecessary language, he is saying that banning legal speech sounds ‘like’ prior restraint. In modern parlance, this phrasing expresses that he is not making a legal or factual judgement, but the opinion that it seems to fit the definition of prior restraint. It allows him to express an opinion and express it is an opinion not an assertion of fact. Trolls here and on the wider internet love to crucify more assertive commentary.

As to why he makes that connection, your quote while applicable, fails to address anything applicable. Such a ban as described by the AC would be a requirement to get approval for parody from the trademark owner (via the power of the government) – classic Prior Restraint. And as parody is a legally recognized form of Trademark fair use, that restriction would be considered unconstitutional. Hence, unconstitutional prior restraint. I’m sure a lawyer could write it up better, but that’s the core.

MyNameHere (profile) says:

For me, the problem here is that the parody (and I would air quote it normally) is not obvious. That is one of the really key questions when it comes to parody of a trademark, it’s making sure that the fact that it’s not real is plain and obvious. If you saw the hat only from the right, you could easily mistake that it’s a real Titlist product and not a parody.

I also think it also shows a desire for enrichment from the original trademark more than to make any grand parody statement. The same hat without the Titlist trademark branding wouldn’t be much more than another semi-smutty piece of Americana. With the Trademark, it appears to be mostly an infringing piece of semi-smutty Americana.

I also think Mr Stone is right for once, Titlist likely has very deep pockets and can litigate this one into the ground and then 6 feet further under. There can’t be enough money in making novelty smutty hats to pay for that.

MyNameHere (profile) says:

Re: Re: Re:

Well, you are the smart one – so what EXACTLY do you think they are making a parody of? Converting a trademark into a semi-offence name for a body part is truly saying a lot, I know, but I think you can come up with some narrow form of parody for this.

Go ahead. Just sit down over here and talk clearly for the cameras and microphones.

Stephen T. Stone (profile) says:

Re: Re: Re: Re:

what EXACTLY do you think they are making a parody of?

They are parodying the Titleist logo by using the same font and overall design of the original logo to pass on a crude message (“titties”) which coincidentally contrasts with the “stuffy white guy game” image associated with golf (and, by extension, the Titleist brand). The quality of the parody does not change the fact that it is a parody.

Ninja (profile) says:

Re: Re:

“For me, the problem here is that the parody (and I would air quote it normally) is not obvious.”

That’s when we joke about you n0ot being able to recognize titties even if they are stuck to your face?

Ahem. Full of bs as always. Sadly they will probably steer away from the costs of such litigation putting once again IP laws in the realm of pure censorship. Win!

Thad (user link) says:

Re: Re: Re:

Apt Popehat article: The First Amendment Protects Satire Even When Reckless, Stupid, Or Ideology-Addled People Fall For It

Technically that’s about satire, not parody, and the two things are legally distinct. But for the purposes of defining "obvious", the law is the same for both.

Here are a couple that refer specifically to parody:

Arkansas Senator Mark Pryor: Ashamed To Be Called A Prostitute, But Proud To Be A Thug

Today In Silly Censorious Threats

MyNameHere (profile) says:

Re: Re: Re:

You still end up down the same path, which is “is it a parody?”. The smirk on your face is breast related, not because of the use of the Titlist trademark to get there.

As for full of BS, consider this: These are the sorts of things that would be argued in court. I am sure that a judge would be more than willing to hear both sides of the argument, after all of the other bases have been touched on the way to the court room. Landing in court, it would still be a crap shoot, with the legal wait of the system generally sitting on the side of the trademark holder. Would you want to be the defendant here? Do you really think the defendant is in a 100% secure position, such that any and all costs related to going to court are assured to be covered?

I don’t think so. I think it would be a risk because it’s not a slam dunk legally. No BS, just asking the obvious questions rather than just swallowing the story whole without digesting it.

Anonymous Coward says:

Here is a question. What happens if the CEO of I Made Bogey shows up in court with no lawyer, no preparation, and on the day of the trial, gets up for opening arguments and says “It is a parody, and that isn’t against the law”

Seriously, make sure a judge is overseeing the case (not a jury) and just say that what you did isn’t illegal.

What happens?

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