6
Apr/12

The Ineffable


Hyundai ran a commercial with humorous depictions of what it would be like if luxury items were widely available. Policemen would eat caviar, yachts would be parked in driveways, and men would play basketball on a marble court with golden rims and a basketball bearing the Louis Vuitton ‘toile monogram.’ LV sues for dilution, and wins. Decision below.

Prof Goldman’s thorough discussion here. A few initial reactions after one reading of the decision.

The federal dilution statute enjoins ‘commercial use in commerce of a mark or trade mark. . .” Academics have argued for the importance of interpreting this clause to mean ‘use of a mark as a mark‘. Was the basketball used as a trademark? In what is clearly a car commercial, a character bounces a basketball for several seconds. Does the basketball communicate origin of anyone’s goods or services?

Also, apparently a Hyundai witness testified that LV wasn’t the target of parody, but that luxury in general was the target of satire. I’m not so sure. A think that jokes can have more than one target. I’m reminded of the MasterCard v Nader case (2004 WL 434404 (SDNY 2004), the “Priceless” case. In analyzing the parody defense under copyright law, the Court noted that while the primary point of the ‘Priceless’ commercial was a comment on political mores, it also ‘subtly’ commented on the worldview espoused in MasterCard’s commercials. The application of the LV monogram turns mundane leather objects into coveted luxury items. The LV basketball may be reasonably perceived as commentary on that point.

Finally, where are we headed with dilution? YHWH is ineffable; the LV monogram is just somebody’s trademark.

Lv Hyundai Basketball