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"...Quizno's Spoof Ad Is So Real, the Burning Man Festival Is Threatening to Sue"

By John E. Moore
Law Offices of John E. Moore

Quizno's, a sandwich chain, has released a video making fun of the Burning Man festival's growing corporate influence. (Abby Phillip, This Quizno's Spoof ad is so real, the Burning Man festival is threatening to sue, WASHINGTON POST, September 13th, 2015, at www.washingtonpost.com)

If you did not know already, Burning Man is a music and arts festival that takes place annually in the deserts of Nevada. The "burners" (that is, the party-goers) construct a series of themed camps around the "playa." In the center of the playa is a massive wooden sculpture--the man--which is burnt on the closing evening of every year's rave. Beginning with only 40 participants on a beach near San Francisco in 1986, it attracted over 65,000 in 2014. (See generally at http://burningman.org/)

The Burning Man has established an ethos tied up in 10 principles, the most important here is the "decommodification" principle. Burning Man intends to create social environments "unmediated by commercial sponsorships, transactions, or advertising." The organization stands ready to protect its culture from exploitation and to "resist the substitution of consumption for participatory experience." (See "Decommodification," at http://burningman.org/culture/philosophical-center/10-principles/) According to the Washington Post, however, Burning Man has been subject to growing criticism for allowing corporate executives to put up increasingly elaborate, corporate-sponsored camps that seem to undermine the "decommodification" principle.

Enter Quizno's with a video advertisement that mocks Burning Man and its excesses. (See "Burn Trials--Out of the Maze and onto the Playa," at https://www.youtube.com/watch?v=CBVBHRD5lNU)(the Ad). In the video, which also parodies "The Maze Runner" movie, a group of teens have escaped the maze (which is beyond the scope of this comment) and arrived on the "playa," an outpost that is supposedly preserving the outside world by "a very thin, non-GMO, cruelty-free organic hemp thread[!]" Yet the teens discover the camp's dangerous secret: it is only a veneer of counter-culturalism over "Phase 2" of a plan to get "millennials to fork over tons of cash for an over-crowded festival in the middle of the desert." The camp has become commodified. "You kids won't last a day out on the playa without subtle exposure to corporate influence," warns the camp leader who then looks to his left as a Quizno's $1 off pop up click box appears on screen. (See Ad.)
Burning Man, incensed at Quizno's ad, contacted its attorneys about its legal options. What could those be? Perhaps claims of defamation or trademark infringement. However, Burning Man would then have to contend with Quizno's defense that its ad is a parody.

For a defamation claim, Burning Man might state that Quizno's ad made public, false statements "of and concerning" Burning Man that have resulted in harm by lowering its reputation in at least some part of the community. A company or organization can be a plaintiff for libel and defamation.

Yet a defamation claim presents problems for Burning Man. First, the festival's organizers could have a hard time showing falsity. Quizno's is not the first to note the conflict between Burning Man's "decommodification" principle and the appearance of branding at the festival. Burning Man might also have trouble on the "of and concerning" prong. Authors have license to creatively interpret scenes of reality when there are no serious doubts that the portrayal is meant as the truth. Last, how would Burning Man show harm? Attendance in 2014 was 65,922, which was already down from 69,613 in 2013. Besides, as a public figure/organization (a 105 foot tall public figure), Burning Man would have to show that Quizno's statements were made with actual malice. That is, that Quizno's acted with knowledge that the statement was false, or with reckless disregard as to whether the statement was false or not. Either sets a high bar. And public figures have trouble overcoming the parody defense. (See Hustler Magazine v. Falwell, 485 U.S. 46 (1988) (Hustler Magazine's parodic description of the Rev. Jerry Falwell's "first time" occurring during a rendezvous with his mother in an outhouse was found not actionable.))

A more interesting path for Burning Man would be to make claims under the Lanham Act. Burning Man is a trademark registered with the U.S. Patent and Trademark Office, and the video clearly uses the words "Burning Man", giving the organization possible claims of infringement, blurring, and tarnishment. Each of those, though, could falter against the fair use defense of parody.

Parody, in trademark, is a complete defense; but it has to be a successful parody, and the viewer cannot be confused as to the ultimate source of the goods or services. A successful parody must convey two simultaneous, yet contradictory messages: that it is and is not the original. This differential should communicate some element of satire, humor, or ridicule.(See generally Louis Vuitton Malletier SA v. Haute Diggity Dog LLC, 507 F.3d 252 (4th Cir. 2007) (in which "Chewy Vuiton," a chewable dog toy modeled after Louis Vuitton designer handbags used "for casual canine destruction," was an unmistakable satire with no likelihood of confusion as to the ultimate source); also Jordache Enters., Inc. v. Hogg Wyld, Ltd., 635 F. Supp. 48 (D.N.M. 1985) (finding the use of "Lardashe" jeans for larger women to be a successful and permissible parody of "Jordache" designer jeans))

Quizno's ad is evidently parody. It continues the events immediately following Quizno's "Maze Runner" ad--itself a parody of a recent fantasy adventure film. In the new scenario, the earnest teens, having escaped the Maze, arrive at the "playa." Against a background of suspenseful music and sound effects, they are confronted with broadly drawn and ridiculous characters and situations. In one scene, a bearded, overweight "shaman" wearing a stuffed animal costume anoints the main character "Moon Pony." In another, the camp leader mysteriously asks "Don't you want to understand . . . how to look cool on Instagram?" The ad mocks the earnest excesses of the Burning Man festival. Yet even if the ad were found to be a successful parody, would the viewer be confused as to the actual source of the goods?

To make a confusion claim under the Lanham Act, Burning Man would have to demonstrate (1) the strength or distinctiveness of its mark; (2) the similarity of the two marks; (3) the similarity of the goods and services the marks identify; (4) the similarity of the two businesses' facilities; (5) the similarity of advertising used by the two parties; (6) the defendant's intent; and (7) actual confusion. Even assuming that "Burning Man" is a strong mark--not a foregone conclusion: ask your average 50-year old if she or he has ever heard of Burning Man--there is no similarity of the marks, the goods and services identified, the two businesses' facilities, or the advertising. As for Quizno's intent, an intent to use the mark is actually required for parody. However, an intent to parody a mark is not an intent to confuse the public. (See Jordache, 828 F.2d at 1486.) Further, a successful parody can co-opt most or all of the confusion factors to the defendant's benefit. The "Chewy Vuiton" court noted that, by concluding that the "Chewy Vuiton" dog toy was a successful parody, it implied that the defendant had mimicked part of the Louis Vuitton marks, but because the differences were sufficiently obvious, no consumer would mistake the source of a "Chewy Vuiton" as coming from Louis Vuitton. Here, it seems clear that an ad sponsored by Quizno's, where pop-ups continue to appear advertising $1 off sandwiches while poking fun at the supposedly silly seriousness of Burning Man, is not likely to lead to consumer confusion.

Burning Man would have similar difficulty showing dilution or tarnishment. Under the Trademark Dilution Revision Act of 2006 (TDRA), Burning Man would have to show it has a (1) famous, distinctive mark, (2) which is being used by the defendant and is diluting the famous mark, (3) that there is similarity between the two marks giving rise to association, and (4) that the association is likely to impair the distinctiveness of the famous mark ("blurring") or harm the mark's reputation ("tarnishment"). The TDRA provides that fair use--interpreted to included parody--is a complete defense as long as the use is not a designation of source for the person's own goods or services.

Here, a successful parody co-opts the dilution and tarnishment factors. Again, assume the Burning Man mark is famous and distinctive. A successful parody requires the viewer to make an association between the famous mark and the parody. However, as long as the viewer can distinguish that they are separate, there would be no blurring. In Hormel Foods, the court found that the Muppets parody character, Spa'am, a wild boar, increased public association of the Spam food product with its source and so no dilution existed. (Hormel Foods Corp. v. Jim Henson Prods., Inc., 73 F.3d 497, 506 (2d Cir. 1996)) Similarly, since a parody involves ridicule and mocking, which has at its core an intent to harm, how can there be tarnishment? In Hormel, the court found that Spam was already the butt of jokes, and thus no tarnishment existed. Similarly, Quizno's is mocking a recognized problem at Burning Man -- it already has been commodified in violation of its "decommodification" principle. As long as Quizno's use of the Burning Man mark is not a designation of source for Quizno's own goods, no blurring or tarnishment exists.

As an aside, note the tension caused if Burning Man were to use trademark law to protect its "decommodification" principle.

Many cautious attorneys advise their clients to shy away from use of a third party's name, likeness, or mark to avoid litigation, even though there is a fair use defense. To be sued in the first place is to lose. Yet a review of the ads on the Quizno's site shows that its legal and advertising departments are unfazed by the possibility. Quizno's executives seem confident that their parodies are fair use and, perhaps, that the cost of any suit would be offset by the publicity accruing to Quizno's. More power to them.

Now let's go get a sandwich and sit around a campfire somewhere.

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