Foxworthy v. Custom Tees, Inc. 879 F.Supp. 1200 (1995) Foxworthy was a comedian who wrote a lot of jokes that started with, "You might be a redneck if...." Custom Tees began producing a line of T-shirts that had Foxworthy's jokes on them, slightly reformatted. Foxworthy sued in order to get an injunction for trademark infringement. Custom Tees argued that they had changed the jokes just enough to avoid infringing on Foxworthy's trademark. The Trial Court found for Foxworthy. Foxworthy never had a registered trademark. Under 15 U.S.C. §1125(a), unregistered trademarks are still protected. That's called a common law trademark. Custom Tees argued that the term "You might be a redneck" was purely functional and therefore not trademarkable. However, the Trial Court disagreed. The term became a catch phrase when used in connection to humor. Due to Foxworthy's efforts, the term was easily identifiable with Foxworthy. Therefore the trademark was descriptive but had taken on a secondary meaning. That made it trademarkable. The Trial Court found that Foxworthy did not have a claim to all redneck humor, but just those jokes that distinguishes his humor from other comedians. In a similar case, the Dallas Cowboys cheerleaders were successful in stopping other teams from using similar cheerleader outfits even though they didn't claim a trademark to the concept of cheerleader outfits. Only ones of similar color and style to theirs. The Court found that Custom Tees use of the jokes would confuse the public into assuming they were Foxworthy-approved products. The standard for trademark infringement is whether the infringing product is likely to cause confusion with the trademarked product. There are a number of factors that the courts can use to determine if an infringing product is liable to cause confusion: How unique is the trademark? Suggestive or fanciful trademarks have a stronger case than descriptive trademarks. How well known is the trademark? How similar are the two names/phrases? How similar are the two products? How similar are the sales methods? How similar is the advertising? Is this a product that people think a lot about before purchasing? Is the infringing product actively trying to cause confusion? Is there any actual data that that general public is confused? A trademark can never be used to bar competitors from marketing a different product. If Custom Tees could successfully make a case that it was impossible to tell a joke about rednecks without using the phrase, Foxworthy would not be able to maintain the trademark. Foxworthy was selling t-shirts, but even if he wasn't he still would have a case. He could argue that he might market t-shirts (since many similar comedians do), and therefore it's trademark infringement even though he didn't have a similar product. If he had never marketed any products, he would probably be out of luck.