TV parody led to damage to trademark owner, rules court

Argentina

In Noverasco v Televisión Federal SA (Case 1809/99, September 30 2004), Argentina's Federal Court of Appeals has ruled that a comedy sketch parodying the plaintiff's trademark, which was broadcast on a television programme produced by the defendant, caused damage to the plaintiff.

Elida Noverasco, an individual who promotes the idea of therapy through dance, owns the trademark DANZA ARMONIZADORA (and device) for services relating to her therapeutic technique in Class 41 of the Nice Classification. Televisión Federal SA (TF) is a television channel. In 1997 it broadcast a comedy sketch in which it used a trade name similar to Noverasco's mark to parody the services she performs under that mark. Novaresco filed a complaint and the case made its way to the Federal Court of Appeals.

The court stated that the case was not typical as there was seemingly no trademark infringement. It therefore had to determine whether TF's parody had caused damage to Noverasco and her mark. The court examined, but distinguished, a number of decisions from the French courts relating to the tension between trademark rights and freedom of expression (Paris Court Cases Le Dalloz 2003 39 som com 2685, February 16 2003 and 26 jur 1760, April 30 2003). These rulings could not be applied to the case at hand as they centred on criticism of certain companies' employment practices or environmental polices rather than use of a trademark for parody and comedy.

The court concluded that although no actual damage had been proven, Noverasco had suffered emotional distress as a result of the broadcast. It decided that she should be compensated for this distress and ordered TF to pay Ps10,000 (approximately $3,400).

It is also worth noting that the court dismissed TF's argument that Noverasco had no rights in her mark at the time the programme was aired as it had been broadcast after her trademark registration had lapsed and prior to the granting of the renewal. The court stated that the effects of renewal were retroactive to the date on which the previous registration had lapsed.

Fernando Noetinger, Noetinger & Armando, Buenos Aires

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