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Parody is a defense to trademark infringement. The defense is that there is no likelihood of confusion because the parody will not be taken seriously.
While it must initially bring to mind the original, it must be clever enough to be clear that it is not the original nor connected with the original, but is a parody, a humorous take-off on the original.
In France, a trademark parody defence does succeed in certain cases on the grounds that consumers may not be confused with the original. Although parody is accepted as freedom of expression, it is not considered to override the trademark owner's rights, if the parody is used for purely commercial purposes.
Commercial use of another's trademark is in all cases considered as an infringement and fair use defence is most unlikely to prevail. Even where a defendant uses another's trademark in a humorous way to promote his own products and services, it is not a permitted trademark parody use.
Commercial use of another's trademark in the Internet context is similarly considered an infringement. However, in cases of editorial parody, where a trademark is utilised for the purposes of satirising even a popular and well-known trademark, there are chances of defence of fair use prevailing, despite claims of source confusion or dilution of the trademark.
For a long time, logo parody on websites could not be envisaged by French courts. Trade marks were considered as "absolute" rights that no one could mock without being liable for infringement. A breach in that strict jurisprudence was first made in the "JeBoycotteDanone.com" appeal decision of 30 April 2003. Displaying a modified version of the famous Danone logo featuring a black stripe as a way to criticize the firm's social policy was deemed to be freedom of speech.
Then Greenpeace's communication got under fire for two logo parodies found on its websites: the first one turned the oil company ESSO into E$$O and the second one added a human skull shadow and a dead fish behind Areva's capital A logo. Both cases got different outcomes in appeal. The association got the green light on the Esso parody (CA Paris, 16 November
2005).
In Areva however, while the trade mark counterfeiting assertion was rejected, the court considered that the logo parodies denigrated the trade mark (CA Paris 17 November 2006): the association of the mark with morbid symbols would "lead to think that any product or service provided under said marks would be deadly"*, the court said. Such discredit, generalized to all
products and services provided by Areva was deemed to go over the limit of "allowed freedom of speech". The court considered that by doing so Greenpeace went over its aim, i.e. struggling against nuclear wastes.
A recent decision of the Cour de Cassation issued on 8 April 2008 has censured this part of the decision. The French supreme court ruled that Greenpeace was "acting pursuant to its aim, in a public interest and public health purpose, and by means that were proportionated to this goal" and therefore that Greenpeace had not abused its freedom of speech right.