Toy company may regret coming for “Sylvanian Drama” TikToker, experts say

Summary

"The question becomes whether people are going to see these videos, even though they're snarky, and even though they're silly and think, 'Oh, Calico Critters must have signed off on this,'" Roberts said. "So the argument about consumer confusion, I think, is a plausible argument." However, if Epoch fails to convince the court that its trademarks have been infringed, then its other claims alleging false endorsement and unfair competition would likely also collapse. "You can still get sometimes to unfair competition or to kind of like a false endorsement, but it's harder to win on those claims and certainly harder to get damages on those claims," Roberts said. "You don't get trademark infringement if you don't have a trademark." Possible defenses to keep “Sylvanian Drama” alive Winning on the trademark claims will seemingly not be easy for Von Engelbrechten, who may have weakened her First Amendment defense by creating the sponsored content. Regardless, she will likely try to convince the court to view the videos as parody, which is a slightly different analysis under trademark law than copyright's more well-known fair use parody exceptions. That could be a struggle, since trademark law requires that Von Engelbrechten's parody videos directly satirize the "Sylvanian Families" brand, and "Sylvanian Drama" videos, even the ads, instead seem to be "making fun of elements of society and culture," rather than the dolls themselves, Roberts said. She pointed to winning cases involving the Barbie trademark as an instructive example. In a case disputing Mattel trademarks used in the lyrics for the one-hit wonder "Barbie Girl," the song was cleared for trademark infringement as a "purely expressive work" that directly parodies Barbie in the lyrics. And in another case, where an artist, Tom Forsythe, captured photos of Barbie dolls in kitchen vessels like a blender or a margarita glass, more robust First Amendment protection was offered since his photos "had a lot to say about s...