Puma Resolution - Dilution v. Fair Use

Susannah Breslin received the following helpful information from Wendy Seltzer of ChillingEffects.org in response to the conveyance of infomation from Puma AG regarding unauthorized "bad taste advertisement" and their demand to take down the "fake ads". [see prior post]

Hi Susannah, From a quick impression, the most likely claim is trademark dilution, against which there's a fairly strong First Amendment parody defense.

Most likely, Puma would claim that its brand is "tarnished" by appearance in these unsavory images (Coca Cola won a famous tarnishment case against the seller of an "Enjoy Cocaine" poster in their trademark script). You'd have a First Amendment defense that the images were parody, social commentary on the brand and the image it has tried to cultivate. L.L.Bean lost another famous tarnishment case against Drake's "L.L.Beam's Back to School Sex Catalogue". Your site's non-commercial nature is another factor working in your favor. I doubt there's a straight infringement claim, that consumers would be confused into thinking that Puma sponsored these images, but that's another possibility. To be on the safer side, you might change the text of the hyperlink to something other than the trademark. Note that the DMCA's notice and takedown provisions (and the DMCA safe harbor) don't apply to trademark claims; and a publisher can be held liable for publication of trademark infringement.

Conceivably, the creator of the image could claim a copyright infringement based on your copying, or if the image is an unauthorized derivative of an actual Puma photograph, the original's creator could claim unauthorized creation of a derivative work. That doesn't sound like what's happening here though.

I think the subjects' heads' being cut off precludes a claim of rights of publicity! [RCB]

Well, I guess this answers some questions.