The Case of the Sarcastic Spy

Did you ever use CliffsNotes in high school and college as a supplement to the novels assigned in your English classes? (Notice I used the word “supplement” rather than “substitute,” because I know the good Christians reading this blog would never have even considered that second use.)

When Bantam Doubleday Dell Publishing Group and Spy magazine collaborated on a one-time issue of Spy Notes, they adopted a cover that replicated CliffsNotes’ trademarked design with its yellow color, black stripes, and black lettering. The cover also included the words “A Satire” printed five times in red, the Spy magazine logo, and a clay sculpture of New York City (instead of the clay mountain sculpture found on CliffsNotes covers).

Cliffs Notes, Inc. was not amused. Instead of laughing it off, the company sued Bantam for trademark infringement.

Trademarks identify the origin or sponsorship of goods, and the CliffsNotes trademarks told consumers that the guides were produced by Cliffs Notes, Inc. In order to win its case, Cliffs Notes, Inc. had to prove that the public believed it produced, sponsored, or endorsed Spy Notes. If there was no confusion, there was no infringement.

Parody is a frequent defense in trademark cases because a successful parody makes confusion less likely. The imitating work doesn’t have to be a good parody, but consumers must recognize it as one.

Although Spy Notes used the word “satire,” it made fun of the CliffsNotes summaries and was a parody for legal purposes. The Second Circuit Court of Appeals ruled that it was a successful one, as well. As a result, the appeals court concluded that the potential for confusion over Spy Notes’ source was outweighed by the public interest in free expression, and Bantam won.

Trademarks share some characteristics with copyrights, but the differences outweigh the similarities. So what happens when trademark claims clash with the copyright laws? Check back next month for the Case of the Crusade Wars.

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Kathryn Page Camp is a licensed attorney and full-time writer. Her new book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013) is available from Amazon.com and other retailers. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.