A schoolyard brawl between the Garbage Pail Kids and the Garbage Parody Kids has broken out in Central Illinois.
On October 11, 2017, Topps Company filed suit in the Central District of Illinois, Urbana Division, (Go Illini!) against Luis Diaz. According to Topps' complaint, Diaz is a "freelance artist who decided to exploit his prior relationship with Topps through a line of knock-offs under the confusingly similar name 'Garbage Parody Kids' (and, occasionally, 'Gavage Parody Kids')."
Topps alleges Diaz violates Topps' trademarks and trade dress…and checking out Topps' side-by-side comparison, Topps has a good point.
Legal aside: Kudos to Topps' attorneys for using side-by-side comparisons and labeling Diaz's art as "Knock-Off" in the complaint. This easily portrays the message to the judge (and media). Too often lawyers just allege infringement without providing such comparisons, and really lose opportunities to tell the infringement story.
Not all the alleged infringing works are as similar, but when it comes to trade dress, it's hard to not see similarities between Gavage Parody Kids and Garbage Pail Kids.
The analysis for trademark and trade dress infringement focuses on whether a consumer would likely be confused as to the source of the allegedly infringing cards.
Legal translation: If a consumer sees the above cards, does he or she think they might be cards sold by Topps, or might actually be part of a Garbage Pail Kids collection?
It's unclear from the complaint where Diaz sells his Gavage Parody Kids, but it appears he has a Pinterest page showing some of his art.
Given that the name of Diaz’s card line focuses on "Parody," he likely intends to rely upon the parody defense to trademark infringement. Unfortunately, the parody defense for trademarks isn't as strong as it is in other fields (like copyright). Also, due to the similarity of his card design and Diaz's former relationship with Topps, I think he has a difficult fight ahead of him (if he chooses to fight).
My prediction: this case will wrap up confidentially in less than six months, after which we won't see any more offerings of Gavage Parody Kids or Garbage Parody Kids.
A copy of Topps' complaint is available here.
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