Humor and irony are outstanding tools to achieve a high level of attention, and praise be to those who can use these tools skillfully. Since parody and satire involve an imitation of style and the exposure and criticism of another person or subject, advertising with elements of parody or satire present a risk of litigation in the European Union, particularly in Germany. Advertisers should therefore be well aware of the guardrails for appropriate use of parody in advertising.
THE TRADEMARK GAME
An apt reference to another well-known brand is sure to elicit a smile and a high degree of attention. However, to ensure the long-term success of the advertisement, the advertiser must navigate around three pitfalls. First, the advertiser must not use a sign that is identical to the trademark for advertising the same goods for which the trademark is registered. Second, it is important to avoid any likelihood of confusion. This means that even if the advertiser uses only a similar sign or promotes only similar goods, but the promoted sign or goods can be confused with those of another trademark owner, such advertising will likely be challenged.
The trademark game winner is the advertiser that manages to create ironic advertising without making the third common mistake of exploiting the reputation of a well-known trademark by using a sign that is identical or similar to a well-known trademark. Where the general public, for example, links a slogan with a registered trademark and the advertiser takes advantage of the special attention gained by the association with a well-known brand, such advertising is subject to exposure to litigation as the trademark owner may demand injunctive relief (District Court of Hamburg, Judgment of 1 Aug 2018 – 416 HKO 75/18). Only in cases in which the advertising is not driven by a commercial purpose but instead pursues artistic interests does the advertiser’s freedom of art prevail (German Federal Court, Judgment of 3 Feb 2005 – I ZR 159/02; German Federal Court, Judgment of 10 Feb 1994 – I ZR 79/92 and Federal Constitutional Court, Decision of 27 May 1994 – 1 BvR 916/94).
NAMES OF PERSONS AND THE RIGHT OF PERSONALITY
An individual’s name can also be the subject of imitation or criticism in advertising. Under German case law, however, a name is part of each person’s right of personality, similar to the right to one’s image. Accordingly, when the name of a person is used in advertising, it interferes with the pecuniary elements of the person’s right of personality and anyone who uses a person’s name or image without consent runs the risk of having to pay a license fee for the use (in addition to having to refrain from further use of the advertising). The only exception is where the advertising is an outflow of the freedom of speech. For example, where the advertising recalls an actual incident and related media coverage and comments on both in a particularly smart satirical or mocking way, the advertising is protected by the freedom of speech (German Federal Court, Judgment of 05 June 2008 – I ZR 96/07).
CONCLUSIONS
While humor and irony are effective in advertising, advertising references to other persons, trademarks, or businesses in a mocking way pose a potential risk of litigation. One way to work around potential claims is to not explicitly name the referenced person or trademark but only imply a reference. Wherever a certain name is referenced or a picture of an individual is used, an advertisement should have either a particular message or an artistic meaning that outweighs the mere commercial purpose of the advertising in order to fall under the protection of the freedom of speech or art. It is important for parody in advertising to be executed skillfully and examined carefully prior to release.
