BritneysSpeculum: Moreover, if Moveon did not challenge this unauthorized use of its marks, it could run the risk of being deemed to have abandoned the mark as well.

This is a good point. If a court found MoveOn had moved on from the "MoveOn" mark via abandonment, it could tell MoveOn to take it's infringement suit and move on. I hope that helps.

BritneysSpeculum: Nabb1: This is a good point. If a court found MoveOn had moved on from the "MoveOn" mark via abandonment, it could tell MoveOn to take it's infringement suit and move on. I hope that helps.

But it cannot be deemed to have moved on as long as it continues to move toward protecting its moveon mark.

Which is why MoveOn needs to make a move on all potential infringers, even if ultimately it may be a fair use, rather than loss of trademark. The former you can live with, ultimately. The latter would be disasterous, from the mark holder's perspective, anyway.

KaponoFor3: BritneysSpeculum: While the parody tshirt company may be able to assert a defense of parody, that is their burden to prove.

That's odd -- is the burden truly on the defending party? Most of the time its the plaintiff that has the burden to prove all elements of a prima facie case.

No, the burden shifts to the defendant to prove the elements of an affirmative defense, which parody is. The plaintiff still has to make a prima facie case, but that would be pretty easy, since the mark "MoveOn.org" is plainly on the shirt, and then modified for the apparent parody effect. You have use of the mark in commerce, so MoveOn has a leg up there. Given the political nature of MoveOn.org, that could arguably lend an element of political speech to Cafe Press's defense, which would offer more protection that purely commercial speech. And the confusion element is pretty big, too. I doubt any reasonable consumer would really think he was buying a MoveOn.org shirt if he bought that.

BritneysSpeculum: CafePress is not making these t-shirts as a political statement but to make money.

Dude, fight the t-shirt power.

The fact that a political statement is being sold on a t-shirt doesn't make it less political, though. If MoveOn.org sells it's own t-shirts, they are still engaged in commerce with their mark as well. The fact that they may be a not-for-profit entity doesn't change the trademark ramifications, although my trademark law is a wee bit rusty.

BritneysSpeculum: What the fark are you talking about. Fair use is codified at section 107 of the Copyright Act, you internet lawyer.

Ooo, calm down, counselor. But, yes, IIRC, "fair use" is spelled out in the Act.

BritneysSpeculum: I am calm, but I just didn't appreciate Earl Warren's comment.

This is Fark. You could be Chief Justice of the Supreme Court and someone here would tell you that you had not idea what the law says.