Oak Creek, WI asked in Copyright, Trademark and Intellectual Property for Wisconsin

Q: I am wondering if I can sell art that incorporates the name "Peep" and a very small fraction of a peep's shape.

The art says "Peep-a-Boo" and shows just the ears at the bottom of the image indicating it's about to come up or is hiding. I have another one that shows just the middle of a peep's face (two eyes but no ears or body) hiding in a cracked egg. Finally, I have one that shows a Peep hiding behind a door. One ear, one eye, 1/3 of its face, and a very small fraction of its body are shown. I am not using any logos.

1. Could this be considered a parody?

2. Is there enough of the Peep's shape showing for me to be infringing on the parent company, Just Born's, trademark?

1 Lawyer Answer
James L. Arrasmith
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A: It is difficult to determine whether the use of "Peep" and a small fraction of a Peep's shape in your artwork would be considered a parody without more information about the context and purpose of your artwork. However, even if your artwork is intended as a parody, it is possible that it could still be considered trademark infringement if it creates a likelihood of confusion with the parent company's trademark or if it dilutes the distinctiveness of the trademark.

Regarding the use of a small fraction of a Peep's shape, there is no set rule for what constitutes trademark infringement. Courts will consider various factors, such as the similarity of the marks, the similarity of the goods or services, and the likelihood of confusion. In general, the less similar the use is to the trademark, the less likely it is to be considered infringement.

It is recommended that you consult with a lawyer who is familiar with trademark law to evaluate the risk of potential infringement and to determine the best course of action.

If you need legal assistance, please do not hesitate to contact my office. We offer a free consultation option for potential clients.

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