Court finds infringement, as parody fair dealing defence fails in United Airlines case

Jeremy Cooperstock owns and operates a website (Untied.com) highlighting alleged failings by United Airlines, which allows users to read or submit complaints about United. United sued Mr Cooperstock for copyright and trademark infringement over the website.

United has a number of registered trademarks including the ‘UNITED’ and ‘UNITED AIRLINES’ marks, its globe logo, and website content including images and layout.

Untied.com uses design and graphics similar to those on the United website. After United complained, Mr Cooperstock made certain small changes to the design and added a disclaimer stating, ‘This is not the website of United Airlines’.

The court found that the website infringed United’s trademarks by using visually very similar marks with similar placement, which resulted in the likelihood of confusion for consumers. The website was designed to evoke the appearance of the United website. There was evidence from the content and tone of some complaints that some consumers submitting complaints to untied.com thought they were submitting them to the airline. The small changes which had been made did not stop the likelihood of confusion. The use also constituted passing off, and diminished United’s goodwill in the trademarks.

Turning to copyright, the court also found the website to be infringing. Mr Cooperstock sought to rely upon the fair dealing for the purposes of parody exception to copyright infringement in the Canadian Copyright Act but the court found that it did not apply.

This is thought to be the first time the court has ruled on the exception. The term ‘parody’ is not defined in the Act, so the court looked at the word’s ordinary use, as well as the scheme of the Act, the intention of Parliament and how parody had been interpreted in other jurisdictions, including the US and EU.

The court found that: ‘Parody should be understood as having two basic elements: the evocation of an existing work while exhibiting noticeable differences and the expression of mockery or humour.’ Untied.com, the court said, did fall within that definition. However, the court found that the dealing with the work was not fair.

The amount of dealing with the work was substantial – the website was a copy of United’s website homepage, an important aspect of United’s dealings with its customers. The court noted that it was questionable whether the parody exception could be invoked where there is confusion – parody required the viewer to understand that what they are seeing is a spoof. Mr Cooperstock was not able to satisfy the court that there was ever any intent for humour, rather the purpose of the website was to embarrass and punish United for perceived wrongdoing.

The UK law equivalent is the exception to copyright infringement for fair dealing for the purposes of caricature, parody or pastiche at section 30A Copyright Designs and Patents Act 1988. As in the Canadian statute, ‘parody’ is not defined, although the European Court of Justice has approved a definition similar to the one above adopted in the Canadian case:
‘… in broad terms, parody imitates a work for humorous or satirical effect. It evokes an existing work whilst be noticeably different from it.’
The exception is untested here too, having only come into force in October 2014.  This Canadian case will therefore be of significant interest to all those seeking to anticipate how the parody exception is likely to be interpreted by the UK courts.