We're talking big bucks. The company's medium handbag retails for $995. A large travel bag is priced at $4,500. As a favor to its well-heeled clientele, Louis Vuitton also offers a luxury line of collars, leashes and dog carriers ranging in price from $200 to $1,600. These necessities may be purchased through Saks Fifth Avenue, Neiman-Marcus, one or two Macy's and a few Bloomingdale's.
Louis Vuitton is not the only famous name to be parodied by the defendant. A pet lover may prefer a chew toy or pet bed bearing the name of Chewnel No. 5 (Chanel No. 5), Furcedes (Mercedes), Jimmy Chew (Jimmy Choo), Dog Perignonn (Dom Perignon), Dogior (Dior) and Sniffany & Co.
Turning to the case at hand, Judge Niemeyer agreed with the plaintiff that the chewy dog toy "undisputedly" evokes an image of the famed Parisian handbag. It loosely resembles the real article. Its CV monogram imitates the imperial LV. Haute Diggity Dog's parody is admittedly deliberate. Is it also unlawful?
Judge Niemeyer's panel agreed with the plaintiff that Haute Diggity Dog had painstakingly copied Vuitton's design. This could not be avoided if the parody were to succeed. But the imitation was only "almost" exact. There were equally obvious dissimilarities. These were sufficient to show that as a matter of law, the small Arizona company had not damaged the famed Parisian designer.
The key question in cases of unfair competition and consumer protection is this: What is the likelihood of actual confusion? How similar are the goods or services? Are the products put to the same use? In the case at hand, what was Haute Diggity Dog's intention? Clearly, it was to engage in "parody," i.e., to communicate "some articulable element of satire, ridicule, joking or amusement." Judge Niemeyer cited a case from the 10th Circuit in 1987: The marketing of "Lardashe" jeans for larger women was a permissible parody of Jordache jeans.
Last month's opinion in the 4th Circuit called to mind the Supreme Court's opinion almost 20 years ago in the case of the Rev. Jerry Falwell and Hustler magazine. The underlying law was entirely different, but parody was the key. The pornographic magazine had carried a mock advertisement for Campari liqueur in which Falwell was depicted as reveling in the "first time" he had experienced — not the liqueur but a "drunken incestuous tumble with his mother in an outhouse."
The Virginia preacher sued for libel, but Chief Justice William Rehnquist wrote for an 8-0 court in vigorously defending parody as a venerable form of literary art. It is certainly an ancient form, dating at least to the days when Aristophanes parodied the dramatic devices of Euripides. Chaucer parodied chivalry in one of his tales. Cervantes and Rabelais were masters of the art. In the players' scene in "Hamlet," Shakespeare parodied Marlowe.
It's a lovely literary device, but it requires a skilled hand. The field is bounded by the laws of libel, the risks of plagiarism and the penalties for copyright infringement. But when parody works, it works amazingly well. Haute diggity dog!
(Letters to Mr. Kilpatrick should be sent by email to kilpatjj@aol.com.)
