Introduction
A parody is an imitation of the style of a particular business, brand, or person with deliberate exaggeration for comic effect. Parodies are a ubiquitous element of modern culture, appearing across print, television, and the internet as both entertainment and critique. But when parody intersects with trademark law, the legal analysis can turn quickly from “funny” to “actionable.” This post outlines how trademark parody is assessed in Canada compared to the United States, and where the key legal risks tend to arise.
Trademark Parody in the U.S.
U.S. trademark law generally aims to balance brand protection against free expression. In practice, however, trademark parody is not a free-standing “get out of jail free” card. Parody is usually evaluated within ordinary trademark doctrines, especially likelihood of confusion (infringement) and, where applicable, dilution of a famous mark.
The Jack Daniel’s “Bad Spaniels” decision (U.S. Supreme Court, 2023)
The U.S. Supreme Court’s 2023 decision in Jack Daniel’s Properties, Inc. v. VIP Products LLC is the modern reference point for commercial parody risk. The dispute involved a dog toy mimicking the Jack Daniel’s bottle trade dress and using the “Bad Spaniels” joke label.
The Court’s core message was straightforward:
- When the alleged parodist is using the challenged elements as a trademark (meaning, as a source identifier for its own goods), courts should not short-circuit the case using special First Amendment screening tests (often discussed under the “Rogers test” framework in some U.S. jurisdictions). Instead, the claim proceeds under the ordinary likelihood-of-confusion analysis.
- On dilution, the Court emphasized that the Lanham Act’s dilution exclusions (which can protect parody/criticism/commentary in some circumstances) do not apply where the challenged use is “as a designation of source” for the defendant’s own goods or services.
Practical takeaway (U.S.): Parody can still matter, but if you are branding and selling goods using a parody mark or parody trade dress, you are more likely to be litigating under standard infringement/dilution frameworks rather than obtaining an early First Amendment “off-ramp.”
Trademark Parody in Canada
Canadian trademark law is often less forgiving for parodists, largely because the Trademarks Act does not contain an explicit parody defence. Canadian cases tend to focus heavily on two risk vectors:
- Confusion: whether consumers are likely to believe the parody is connected with the trademark owner (guided by the statutory confusion factors in s. 6(5)).
- Depreciation of goodwill (s. 22): even where confusion is weak, a plaintiff may pursue the “anti-dilution” style remedy in s. 22, which targets uses likely to depreciate the goodwill attaching to a registered mark.
Case study: MédiaQMI Inc. v. Murray-Hall (Le Journal de Mourréal)
A leading modern illustration is MédiaQMI Inc. v. Murray-Hall (Quebec Superior Court, 2019 QCCS 1922). MédiaQMI (owner of Le Journal de Montréal) sued over Le Journal de Mourréal, a satirical publication deliberately styled to evoke the original.
Commentary on the decision highlights that the court:
- treated parody as not being a defence to trademark infringement/depreciation; and
- found liability where the satirical imitation crossed into confusion and harm to goodwill, leading to injunctive relief and monetary consequences.
Practical takeaway (Canada): If the “joke” functions like branding, looks close enough to create confusion, or is likely to reduce the value of the goodwill in a registered mark, parody intent will not usually save the defendant.
The Energizer Bunny: A Lesson in Territorial Rights
The battery-bunny saga is a useful reminder that trademark rights are territorial and can be split by agreement. In broad terms, public reporting describes a 1992 agreement limiting Duracell’s bunny use in U.S. and Canadian marketing, while Duracell retained rights in other regions (notably Europe).
Canada-specific trademark registrations also reflect Energizer’s bunny branding presence in Canada (for example, “ENERGIZER BUNNY & Design” in the Canadian Trademarks Database).
Practical takeaway: A parody, mascot, or brand element that is lawful (or even registrable) in one jurisdiction may be impermissible in another because the underlying trademark rights differ by country.
A Cautionary Canadian example: the Michelin labour-leaflet dispute
It is often tempting to assume that “non-commercial” parody is automatically safe in Canada. The Michelin labour dispute illustrates why it is more nuanced.
In Compagnie Générale des Établissements Michelin-Michelin & Cie v. CAW-Canada (1996), the union used Michelin’s “Bibendum” and “Michelin” in leaflets/posters during organizing. Summaries of the case commonly report that Michelin’s trademark claims (including under s. 22) failed primarily on the statutory “use” requirement, while the union was found liable for copyright infringement.
This is not so much a “parody win” as a reminder that Canadian trademark causes of action can turn on threshold concepts like use in association with wares/services.
Copyright law vs. trademark law (Canada)
Canada’s Copyright Act expressly includes parody and satire as enumerated fair dealing purposes (added through the Copyright Modernization Act reforms).
But that is copyright, not trademarks. A creator might have a stronger argument that a parody is fair dealing for copyright purposes, and still face trademark exposure if the parody creates confusion or meets the elements of s. 22 depreciation (or passing off).
Practical implications for businesses and parodists
For businesses
- Monitor your marks, but triage carefully: the real escalation point is often commercialization (merch, paid ads, brand extensions) paired with consumer confusion or evidence of goodwill harm.
For creators and parodists
- In both countries, the biggest risk is using the parody as a brand for goods/services.
- In Canada in particular, “it’s a joke” is not a statutory defence under the Trademarks Act, and courts may still grant meaningful remedies where confusion or goodwill depreciation is proven.
Concluding remarks
Trademark parody is legally consequential because trademarks are not simply creative symbols; they are commercial identifiers backed by statutory rights. The U.S. permits more structured room for expressive use in certain contexts, but Jack Daniel’s v. VIP underscores that parody used as branding can be litigated like any other infringement/dilution case. In Canada, the absence of an explicit trademark parody defence, combined with confusion and s. 22 goodwill-depreciation exposure, makes the “fine line” easier to cross.
