ABSTRACT
It is indisputable that humour occupies a significant role within society, serving as a means through which individuals can engage with and reflect upon themselves, their communities, and the broader world. As a communicative tool, humour can function as a catalyst for inclusive discourse and provide a platform for the voices of marginalised groups. Its utility extends to educational contexts, where it can facilitate engagement and understanding. Brand owners have also quickly understood how powerful the use of humour in providing amusement, critical meaningful connections with audiences. As such, humour can be used to distinguish one’s products and services on the market and especially, in the information society we live in, efficient advertising is an important source of information.
Parodic expressions, including satire, caricature, and burlesque, are widely recognised as protected forms of expression under the right to freedom of expression. Despite this fundamental protection, legal uncertainties persist regarding the extent to which registered trade marks may be lawfully used for parodic purposes. Parodies may reproduce a trade mark on goods or services, reference trade mark owners, or repurpose a trade mark symbolically to critique or comment on the values it represents. Incongruity functions as a foundational element in effective brand parody, serving as a critical mechanism through which humour, critique, and cultural commentary are conveyed. Central to the concept of incongruity is the deliberate juxtaposition of elements that are conventionally unrelated or contextually mismatched. Brand parody often involves recontextualising familiar trade marks, slogans, or brand imagery in unexpected or subversive ways, thereby generating cognitive dissonance and prompting audiences to reassess established commercial narratives.
There is no international defence for such uses under trade mark law. The TRIPS Agreement, for example, only requires signatory parties to provide limited exceptions and limitations such as for descriptive uses which has led to limited domestic legislative activity to introduce further exceptions. In Europe, there is currently no legislator who enacted a specific statutory trade mark parody exception. However, the EU legislator has entertained the idea of introducing a specific parody exception as part of the European Union Trade mark Legislative Reform Package in 2015.Eventually, this recommendation was not followed through. And although the Recast of the Directive and the Regulation do not extend referential uses such as to include parody expressively, recital 27 Trade Mark Directive 2015 and recital 21 Trade Mark Regulation 2017 respectively require courts to apply trade mark provisions in accordance with the maximisation of all human rights in play, with special consideration for freedom of expression. Here, the reference to ‘due cause’ in the dilution provision provides a lifeline for those wishing to save a parody from resulting in a trade mark infringement. Yet, currently clarity is lacking in terms of the factors to be adopted to resolve the conflict between trade mark right and freedom of expression, taking into consideration all circumstances of a specific case.
This begs the question, what place is there for parodic uses by market traders? In an attempt to answer this question, this chapter will first look at the interrelation between trade mark and freedom of expression at international level (Section 1) to then focus on the judicial approaches to resolving the conflict between trade mark rights and freedom of expression in relation to humorous uses (Section 2). Section 3 will offer some guidance to brand owners wanting to engage in this form of expression in a commercial context before concluding.
Jacques, Sabine, Humour as Strategy: The Commercial Risks and Boundaries of Trade Mark Parody (April 22, 2025).
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