I heard about this story on NPR, but a big hat tip to the Citizen Media Law Project for not only reminding me of it, but for its dead-on analysis of the case.
The short version, Mark D’Avella and his brother Matt D’Avella made a hilarious rap video about produce, while working at their local A&P. The video is typical juvenile humor, mixing rap lyrics, profanity, creative use of fruit, and pretty damn clever parody. Had A&P ignored it, a few hundred people would have laughed and that would have been the end of it.
Unfortunately for the D’Avella brothers, some executive at A&P got together with a lawyer who obviously missed his law school classes on Constitutional Law and Trademark Law. A&P, through its lawyers at Fulbright & Jaworski filed this laughable action against the kids for (get this) defamation, product disparagement, and trademark infringement.
The defamation claim is not even close to worthy. To sustain a claim for defamation, you need to have inter aliaa false statement of fact that harms the plaintiff. I’m not sure what in this video could be considered to be a “false statement of fact.” The defamation claim is a joke. The product disparagement claim is just as bad. Yes, A&P claims that its vegetables are also feeling defamed.
As for the trademark claim, it seems to me that the brothers should consider a motion for sanctions against A&P under Rule 1:4-8 of the Rules of New Jersey Practice pertaining to frivolous litigation. The brothers are in not offering a product or service using the A&P mark (I couldn’t even identify it in the video), and there is simply no way that anyone viewing the video could get confused about whether or not A&P sponsored or approved (much less was the source of) the video. Furthermore, even assuming that the brothers’ use dilutes the value of the A&P mark, it is almost certainly non-commercial (their website doesn’t even have advertisements) and probably a parody, and thus statutorily exempt from liability. See 15 U.S.C. Sec. 1125(c)(3)(A)(ii) and (C). (source)
If I could have said it better myself, I would have.
A&P would be well advised to read the words of none other than the current Attorney General Nominee, quoting no less a legal mind than McCarthy.
“No one likes to be the butt of joke, not even a trademark. But the requirement of trademark law is that a likely confusion of source, sponsorship, or affiliation must be proven, which is not the same thing as a ‘right’ not to be made fun of.” McCarthy § 31:155; see also Anheuser-Busch, 962 F.2d at 322 (”The purpose of the Lanham Act is to eliminate consumer confusion, not to banish all attempts at poking fun or eliciting amusement. . . [or] deprive the commercial world of all humor and levity.”). Tommy Hilfiger v. Nature Labs, LLC, 221 F. Supp. 2d 410 (S.D.N.Y. 2002)
I have seen some really bad defamation complaints in my career, but this one is certainly in the running for the worst. It isn’t that it isn’t well-drafted (it is). The problem is that you would think that a law firm like Fulbright & Jaworski would do a little more research on the validity of the claims before filing such an unsupportable complaint. You would also think that A&P would have a public relations department that would intervene before their legal department got out of control. You would think….
If the D’Avilla brothers get a lawyer who could argue a parking ticket, they’ll be able to beat this rap (no pun intended). If they get one that is even close to competent, they should be able to get at least part of their legal fees reimbursed. Fulbright & Jaworski should have known better. I can’t imagine why they would affix their names to something this frivolous, but if the almighty dollar is so valuable to them, I hope that they have a CYA letter in the file telling A&P that the best case scenario here is that A&P will suffer some negative PR.
For all you aspiring lawyers out there who think that BIGLAW is the way to go, think hard about this case. Imagine that you are a newly-minted associate at a huge law firm, and your boss comes to you and makes you sign this piece of garbage. I would have resigned from my job before putting my name on this – and yes, I do have law school debt to pay off, but my reputation and ethics are worth more to me than that.
I hope that the D’Avilla’s get some damn good counsel, and that they go right back after A&P and Fulbright and Jaworski with a motion for sanctions.
Here’s the video that got the crybabies over at A&P all worked up.
[wpvideo mf5Gz0IX]
EDIT – I am guessing that as part of the settlement with A&P, the D’Avellas removed the video. However, this is the internet — and nothing ever disappears. Video here.
A&P claims that someone complained and said that they wouldn’t be shopping in that particular A&P store again, because they were so disgusted by the video.
How’s this? I’m so disgusted with A&P for urinating on the Constitution and the court system that I won’t be shopping in ANY A&P, and I encourage anyone who reads this to boycott A&P as well.
Fulbright & Jaworski’s website says “When You Think BREADTH, Think Fulbright.”(TM). From now on, when I think CENSORSHIP, I will think Fulbright. This complaint confirms the need for this post and this post.
