I’ve been seeing a lot of celebs wear Brian Lichtenberg stuff lately and I’m thinking about snagging a few of these myself. If you don’t know who Brian Lichtenberg is, he is a fashion designer who is known for designing and selling parody wear. Kind of like “Weird Al” of the fashion world, if you will. Take a quick look at his t-shirts and you will do a double take. Homiès (Hermès), Féline (Céline), Brianel (Chanel), and Bucci (Gucci) are some of my favs.
You guys already know that infringing a trademark is a big no no that can get you in big trouble. Especially for infringing a trademark owned by major brands like Hermés, it’s pretty much guaranteed that you’ll be on the receiving end of a lawsuit. So how does Brian Lichtenberg manage to sell all these goodies without getting into hot water? Because parody is a defense to trademark infringement.
To bring a trademark infringement claim, a plaintiff need to show that the defendant’s use of a trademark has created a likelihood of confusion about the origin of the defendant’s goods or services. But when the defendant is engaging in trademark parody, there is no likelihood of confusion because it’s a humorous take on the original, and it’s not taken seriously.
To successfully use parody as a defense, you must show the following elements:
1) an original host work;
2) the original host work must be famous and/or known to the particular target audience;
3) the creator of the derivative work, the parody, must take only so much of the original work as necessary to bring to mind the original host work; and
4) the derivative work which conjures up the famous host must result in a new, original work.
Let’s look at Brian’s shirts for example… say, the one that says Homiès instead of Hermès. Obviously, Hermès is the original host work, and a famous one that is known to a wide target audience including everyone in the fashion industry and many rich consumers.
Now, when you look at the original Hermès logo, you’ll see that Hermès is written in all caps in a slightly modified form of the Memphis typeface. Above it, you’ll see a Duc carriage that is attached to a horse, interpreting the company’s origins as a horse saddler manufacturer. Below the word Hermès is the word “Paris,” also written in all caps, signifying the company’s country of origin. Also, if you’re familiar with the Hermès brand, you probably know that orange is a signature color of Hermès.
Turning to the Homiès logo, or the derivative work, the word Homiès is written in all caps in the same typeface. Also, there is an accent over the letter “e,” the same place where the accent is located over Hermès. Above it, you see a truck with a person standing behind it. This is a clever and a modern take on the horse drawn carriage. Below the word Homiès, you see the words “South Central” in all caps, instead of the word “Paris.” Additionally, most of the apparel bearing the Homiès logo is available in orange, the same Hermès orange.
Taking all these elements together, the Homiès logo definitely brings enough of the Hermès logo as necessary to bring to mind the Hermès logo, but it also results in a new, original work. So comparing Homiès and Hermès, there is simply no likelihood of confusion. That is not to say, that Hermès is completely okay with Brian Lichtenberg engaging in trademark parody. But this probably doesn’t matter to Brian, so long as Hermès doesn’t have enough to bring a trademark infringement claim against him.
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