[Jordan Olsommer]

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Well, with the term successful in there, of course you are right. However, I do not see his t-shirts as intended to parody Burger King, which is the key element of the parody exception to trademark infringement. His intent certainly appears to be to sell a product which people want to wear because they consider themselves into poker, not because they want to wear it to mock Burger King.

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I don't know. According to the 1976 Copyright Act which covers this (despite the rather popular opinion that parody protection was instated after Larry Flynt's Supreme Court victory over Jerry Falwell):

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107. Limitations on exclusive rights: Fair use "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

"(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

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Here is by far the weakest point for the defense - it's a commercial use, and it's not obviously poking fun at Burger King (as opposed to say, some animal-rights nut wearing a shirt that says "Butcher King" in the same logo or something)


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"(2) the nature of the copyrighted work;

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I have no idea what is meant by this that would be relevant to a ruling in the case, so I'll move on.

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"(3) the amount and substantiality of the portion [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994) , 7] used in relation to the copyrighted work as a whole; and

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Here would be ironically a strong point for his case, since even though he uses 3/4ths of the logo's major components in his shirt, anything that uses the Burger King logo would have to use that much, or close to it.

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"(4) the effect of the use upon the potential market for or value of the copyrighted work.

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And here would be by far the strongest point of his case - there's no way any reasonable person would believe that a shirt sold on ebay to a total of three guys or whatever would have any impact on the effectiveness of Burger King's logo.

So while it's obviously not the most noble use of a logo, I wouldn't be so quick to bet against this moron if the matter were to go to court. On second thought, I would be quick to bet against him, seeing as how it's not very likely that a guy selling crappy, unfunny, unoriginal tshirts on ebay could afford a decent lawyer. But like Judge Pierre Leval said, "First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed."

Don't get me wrong, the guy is of course a total douchebag - I'm just talking minutiae here.