Whoops!
And the hits just keep on coming. Seriously, did WB Legal just take a siesta or something?

Shouldn’t it read:

the law does NOT give charities free rein to appropriate commercial marks.

But isn’t this “parody” coffee? You’d think it’d fall under Fair Use.

Even if it were a parody of Chock Full, the fact that it’s also a coffee (and not, say, a prop in a movie) would mean it probably falls outside fair use. Otherwise, supermarket own brands could just claim the same thing.

For the record, it’s also not very good coffee. “Dark Roast” should not, to my knowledge, mean “tastes burnt”.

@Dhaise–thanks for the catch re the missing “not”. A slip of the edit there!

@mbrady, @weldmeshut: Weldmeshut points to a key argument for Chock Full O’ Nuts–that the use of the design to sell coffee–not to make a satirical comment on the company–creates a likelihood of confusion between Nite Owl Dark Roast & CFON. To demonstrate that, the complaint quotes several online posts that make the direct connection.

The scope of the parody defense is far more narrow than often thought, and, as the Kieron Dwyer/Starbucks case illustrates, even seemingly slam dunk examples can encounter trouble in the courts.

The following excerpt taken from a case in the same federal appeals circuit as CFON case highlights the difficulty:

“‘A parody must convey two simultaneous — and
contradictory — messages: that it is the original, but also that it is not the original and is instead a parody.’ Id. (internal quotation marks and citation omitted). This second message must not only differentiate the alleged parody from the original but must also communicate some articulable element of satire, ridicule, joking, or amusement. Thus, ‘[a] parody relies upon a difference from the original mark, presumably a humorous difference, in order to produce its desired effect.’”

With regard to the Nite Owl can, a judge could likely conclude that the design arguably relies on its similarity to Chock Full’s organic brand to convey its desired effect. Moreover, there is little to distinguish the design from Chock Full o’ Nuts. The mere presence of Nite Owl is arguably not enough–there is no evident humorous difference in what could just as easily be a collectible can sold by Chock Full o’ Nuts itself.

The case from which I pulled the above quote is an exception that proves the rule. In that case, a company created pet toys branded with such puns as “Chewy Vuitton” and “Bark Jacobs.” It was a close call, but in that case you had humor, a distinct product line (pet toys, not high-end women’s accessories) and a sympathetic defendant (a small local company as opposed to a foreign multinational.) In the present instance, we have a product affiliated with Warner Bros. riffing off of a potential competitor that could have been paid to sell such a product itself.

That is astonishingly similar, too similar, to Chock Full O’Nuts. I agree that it crosses the line.

This is infringement IMO. If you guys were in management for this brand would you think it’s right to let it go ? I don’t think so.

@ Vinnie : Dark roast tastes that way to me most of the time.

Ray Feighery caught the typo, I was just being snarky.
For as much issue as this film had, you better believe that anybody who felt infringed by anything was going to come out of the woodwork.

CFON has no choice – the company must initiate legal action to protect its trademarks. Otherwise, CON might lose its claims.

sweet lord, i was all for the movie but coffee, alan morre has to be filling up with furry and what DC has turned his book into

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