By: Dylan Phillips

Image result for ain't no laws when youre drinking claws

You’ve probably heard about White Claw, a popular hard seltzer drink owned by Mark Anthony Brands.[1] According to one source, a student at The University of Toledo recently fell asleep at a Taco Bell drive-thru in the midst of trying to get a late-night snack.[2] When an officer arrived at the scene and asked the student for identification, the student presented the officer with a White Claw, and stated, “There are no laws, when you’re drinking The Claw.”[3] Aside from this particular incident, it seems that the catchy phrase has been interpreted as a joke by the general public, rather than as a statement that a reasonable person would ever take seriously.


The catchy phrase seems to have gained some of its popularity, at least in part, through YouTube comedian, Trevor Wallace.[4] Wallace created a video titled “*drinks White Claw once*,” which used the phrase, “There ain’t [sic] no laws, when you’re drinking Claws;” the video now has over 2.8 million views.[5] Wallace is well known for creating satirical videos, often making fun of “bro culture.”[6] Recently, however, White Claw’s legal team issued a cease and desist order[7] to Wallace on the grounds of trademark infringement[8] to get him to stop selling shirts with the phrase, “There Ain’t [sic] No Laws, When You’re Drinking Claws.”[9] After White Claw burst Wallace’s bubble, Wallace refunded everyone who bought the shirts and then tweeted in response, “I’m TRULY[10] sorry.”[11]


Although it appears that Wallace has capitulated in this spirited fight, whether there are violated trademark infringement laws, when regarding Wallace’s usage of Claws is not so certain.[12] The main federal trademark law in the United States is the Lanham Act, which was enacted in 1946 and most recently amended in 1996.[13] Since the enactment of the Lanham Act, federal law has tended to set the standards for trademark law, which state law typically follows.[14] For White Claw to have a valid claim under this act, it would likely have to prove that it had a valid trademark that Wallace diluted by “blurring” or “tarnishing” the trademark.[15] Despite Wallace using White Claw’s logo without the permission of the mark owner, whether his acts constitute infringement under these categories is not so simple. Regardless of whether a company has a valid trademark, fair use, which is granted through First Amendment right to freedom of speech, and the rationales, which set the need for the existence of trademark protection, must be considered.[16] Based on this right and the rationales for trademark protection, it is apparent that the scope of trademark protection should be narrowed to exclude protection to certain goods, such as Wallace’s t-shirts, which can be easily produced and sold through e-commerce. This is because e‑commerce and social media have led to an environment in which, under certain circumstances, all parties will be in a superior position when a mark owner ignores potential or actual infringement.


The First Amendment right to freedom of speech has continuously been found to carry greater weight than the Lanham Act.[17] The right of fair usage of the marks of others has generally been found to be protected by the First Amendment, when a non-owner’s usage of a mark is not deceptive to customers, such as in circumstances with parodies of trademarks.[18] This right of fair use was reinforced in the most recent federal act directly related to addressing trademark infringement, when President Bush signed off on the Trademark Dilution Revision Act in 2006, which explicitly carved out an exception for parody usage of a mark.[19] Furthermore, the Court recently expanded this notion that free speech outweighs the Lanham Act by holding that “[t]he Lanham Act’s prohibition on registration of ‘immoral or scandalous’ trademarks violates the First Amendment.”[20] However, whether courts will actually enforce a parody exception, regarding a commercial good as a part of the fair use doctrine granted by the First Amendment, rather than finding dilution by blurring or tarnishment of the trademark that is outside the scope of fair use, has seemingly been in a state of constant flux as society changes.[21]


Here, it seems that no reasonable person would believe that there ain’t [sic] no laws, when drinking Claws. Nevertheless, whether Wallace’s t-shirts would fall within the fair use parody exception[22] is questionable because the courts have been reluctant to specify when the exception is applicable for commercial products.[23] The courts may find it to be an expression of permissible free speech within fair use, but might find that one should not have the court’s authority to promote anarchy with another’s mark, even if the expression could not be interpreted as a serious statement by a reasonable person. Ergo, parody law has not been established to the extent to which it should be relied upon as the sole defense for commercial goods pertaining to such a unique statement, such as in the subject case. The confusion produced by this exception should be heavily considered in the question of whether an expansive trademark protection should apply to certain commercial goods when courts are unable to establish a consistent standard for when fair use applies.



New Kids on the Block v. News Am. Publ’g, Inc. is commonly referenced when describing the roots of modern trademark law, which states, “[t]hroughout the development of trademark law, the purpose of trademarks remained constant and limited: Identification of the manufacturer or sponsor of a good or the provider of a service. And the wrong protected against was traditionally equally limited: Preventing producers from free-riding on their rivals’ marks.”[24] The Supreme Court of the United States addressed the reasoning behind trademark law in the 1995 case of Qualitex Co. v. Jacobson Products Co., where the Court described the roots of trademark law as “preventing others from copying a source-identifying mark” and assisting the customer in making purchasing decisions.[25] The purpose of trademark law is to grant one a limited usage of his or her mark, rather than an unlimited usage of a mark, and to protect the public from confusion from what goods are in the market.[26]


Expansive trademark protection, such as with dilution liability, far surpasses the traditional limits of this protection in certain markets. When expansive trademark protection is applied towards goods that can be easily produced and entered into e-commerce markets, such as Wallace’s t-shirts, the law is neither able to protect the interests of the public nor of the mark owner. Thus, the rationales underlying trademark protection should not be found to expand into the broadened trademark protection doctrines, such dilution by blurring or tarnishment, when the rationales for trademark protection are irrelevant to those doctrines.



With the rise of social media, there are many things going viral because of what is known as the “Streisand effect.”[27] The Streisand effect, named after the singer and actor Barbra Streisand, “describes how efforts to suppress a juicy piece of online information can backfire and end up making things worse for the would-be censor.”[28] This effect has a surprisingly strong influence on intellectual property litigation resulting from social media because suppression of information can inadvertently lead to increased publicity.[29] The increased publicity can then ironically lead to an increased connection between the information fought to be suppressed and the entity trying to suppress the information.[30] Because it has become increasingly easier to spread information, and because it has become quite simple to engage in e-commerce, as soon as a popular idea goes viral, such as with a product that is simple to reproduce, an uncontrollable amount of sellers will inevitably enter the marketplace.[31]


Once the marketplace is flooded with sellers—many of whom are likely individuals with small operations and who are selling products through third-party marketplaces, such as Amazon[32] and Etsy[33]—the owner of the mark has only limited courses of action that it may take: (1) ignoring all potential infringers and allowing them to continue to use the mark; (2) getting a court order to enjoin each and every actual infringer from using the mark; or (3) going after a larger seller of the infringed mark and hope that smaller sellers cease usage of the mark out of fear. In matters pertaining to goods that are easy to produce and enter into e-commerce, the first option, which is ignoring potential infringement, would be the most practical action by a mark owner.


The first option of ignoring all possible infringement has much less appeal at first glance than the other options. Ignoring all infringement claims may lead to a substantial number of sellers wrongfully using an owner’s mark for unjust financial gain. However, it could also have an antithetical consequence than that of the Streisand effect, allowing social media to have less reason to mention Wallace’s phrase, thereby permitting the next viral video to usurp the internet’s attention.[34] Although allowing the trademark to possibly be infringed upon is not an ideal option for a mark owner, permitting the internet to have fun with the phrase would likely allow for the least amount of attention being drawn towards the possible infringement. Because less attention would be drawn towards the infringement, it would foreseeably live its life quickly, just as any other internet sensation.[35] In the subject matter, it seems likely that a shirt related to a viral video would not last longer than the time it takes before the next YouTube sensation goes viral.[36] Thus, ignoring the infringement in its entirety may be a preferable option, if the goal is to cease infringement.


The second option seems to have great appeal at first glance because it would be fairer for a court to decide each situation; however, it would not be practical in reality. First, if the claim for a potential parody were to lose in court, the potential infringer would be found free to expand his or her operations. Nevertheless, if a claim were to be found valid, many sellers may not have much incentive to exit the marketplace. A significant number of sellers in e-commerce are running small operations, such as using an at‑home printer to make t-shirts with an infringed mark and then selling them online.[37] If there are hundreds of these sellers online, it seems unlikely that a single company could bring each and every one of them to court to enjoin them from future sales. If they were enjoined by court order, other sellers could easily enter the void in the market and continue to sell the same items. The infringers may also not have any money, because of the small scale of their operations, thus, the infringers may not change their actions because there is nothing to which the mark’s owner could collect upon if it were to try to get money damages. Lastly, and most significantly, many online sellers would be quite difficult to identify and provide notice.[38] If someone does not reveal his or her identity, beyond a virtual account hidden behind a proxy or is located in a foreign state, it would be quite difficult to give notice to a seller.[39] Thus, in the modern age of e-commerce, an owner of a mark cannot feasibly take each infringer to court.


In the subject matter, it is likely that the Streisand effect[40] would occur if White Claw were to go after each potential infringer of its mark.[41] Instead of White Claw being known as a fun drink, possibly associated with Wallace’s humorous phrase,[42] social media could foreseeably spread the news of the owner’s litigiousness, regardless of whether it is justified, and would most likely increase the public’s awareness that there is a connection between White Claw and Wallace’s phrase.[43] This would foreseeably hurt White Claw’s reputation, rather than benefit White Claw; thus, it would not be a reasonable or practical course of action for White Claw to take.


The third option of only going after the most popular sellers seems to be a more reasonable middle ground to the other two options. However, this option would likely not be feasible for the reasons discussed above; if the largest sellers were to be discharged from the e-commerce market, it would be reasonably expected that smaller operations would fill the void in the market.[44] In the subject matter, selling t-shirts through e-commerce carries little barriers to enter into the market, smaller operations will have little reason to worry about potential litigation, and the more attention White Claw would draw to the infringement, the greater the association will be between the mark and the possible infringement. This concern has already begun to become a reality as third-party have started to fill the void in the market from Wallace’s exit of the business selling t-shirts.[45] It is, therefore, apparent that going after the larger sellers is not a feasible option to carry out the trademark protection rationales of limiting infringement and limiting the burden of knowing the source of products for consumers. Thus, White Claw enjoining only the major sellers is still a less desirable option than simply ignoring possible infringement in this matter.



The trademark protection rationales of “preventing others from copying a source-identifying mark and assisting the customer in making purchasing decisions,” are irrelevant, when a t-shirt parodying White Claw could not be reasonably excepted to be produced by White Claw.[46] Moreover, the prevention of the expanded trademark protection of dilution by blurring or tarnishment ironically seems to be best addressed by ignoring the possible infringement for matters in which the possibly infringing product can be easily produced at a low cost and easily introduced into the e-commerce market. To prevent the customers from copying a mark, in the age of e‑commerce and viral internet sharing, the most practical solution in some matters is to ignore the possible infringement and to allow the internet sensation to end by the public moving on to the next sensation in due time. To assist the customers in making purchasing decisions, the matter is also not practically addressed by permitting the bigger sellers of the possibly infringing product to continue to sell their products. If the bigger sellers were to be enjoined, it is then reasonably foreseeable that more small operations would replace the market’s void for the particular item, but with less uniformity because of the individualized operations.[47] Because of less uniformity, there would not only be further possible infringement, but also, there would be similar products being sold with varying degrees of quality.[48] Because of the varying degrees of quality, customers would have greater likelihoods of buying a cheaper possibly infringing product, rather than a nicer quality shirt that is possibly infringing on a mark.[49] Thus, the most practical option to protect a mark would be to ignore the infringement in certain matters, such as with the selling parody t-shirts associated with a YouTube video.


An example of how ignoring possible infringement, when a good can be easily produced and entered into e-commerce, may be the best solution for a mark owner is demonstrated in Coca-Cola Co. v. Gemini Rising, Inc..[50] In 1972, Coca-Cola brought a trademark infringement suit to enjoin Defendant from printing and selling a poster with an almost identical mark that instead of reading “Enjoy Coca-Cola,” read “Enjoy Cocaine.”[51] The court held that the posters use of the Coca-Cola format in its poster was an unauthorized use of the trademark and that because of the potential injury to the reputation of the mark owner, injunctive relief was necessary.[52] However, despite the court enjoining the sale of such products, there are many e-commerce sellers still selling Enjoy Cocaine products with the precise logo the court ordered enjoined from further sales.[53] Thus, it is apparent that Coca-Cola decided to exercise the first option, and now ignores the infringement of its mark on products that can be easily produced and entered into markets from both large and small vendors.


The most practical option for addressing the trademark concerns for all parties in certain matters, such as when an easily producible product borders between fair use through parody law and possible infringement, can be ignoring the infringing acts until the possibly infringing product lives its life. The ease of entering into e-commerce markets demonstrates why trademark protection should be narrowed for goods that can be easily produced and entered into the market. Due to the narrowed ability of trademark law to now address the concerns of infringement, the courts should reconsider whether the current policy behind trademark law is still best addressed by not carving out an exception for goods that can be easily produced and sold through e‑commerce. If the best solution to address potential infringement of a mark is to have a mark owner ignore the issue, rather than judicial interference, the issue should not be addressed by the court. Ignoring potential infringement in this circumstance leaves all parties in a superior position: the mark owner will not enable further entrants to join the market selling subpar goods in a difficult to manage circumstance through enjoining sellers, the potential infringer will benefit by being able to partake in commerce and create art through humor, and the governmental policy interest in protecting consumers in the market will be best addressed by not having to manage an influx of poorly identified sellers with unwanted goods in the marketplace that adds to consumer confusion. Thus, the issue should not be addressed through trademark law because the matter is best addressed without interference by the court. Moreover, the question of whether there is possible blurring or tarnishment of the trademark is irrelevant, if measures to prevent such types of dilution contribute towards dilution. This means that in certain circumstances mark owners should simply acquiesce to a possible infringement since e-commerce and social media have narrowed the ability of trademark laws to address infringement concerns.


Although this does not draw a clear line as to when there is an infringement on any particular type of product, solely regarding the possibly infringing t-shirts in the subject matter, the court should narrow the scope of trademark protection because the issue is best addressed without judicial interference. Wallace’s t-shirts can be easily created by new market entrants to be sold through e‑commerce markets, new market entrants would likely usurp Wallace’s now exited spot in the market if Wallace exited the market, and the rationale of trademark protection for addressing the concern of confusing consumers in the marketplace would be threatened from the influx of new market entrants. Since Wallace has ceased selling his shirts, the market has already been increasing with a number of products, which arguably hurt the White Claw brand to a much greater extent.[54] Similarly to Coca-Cola,[55] acquiescing to infringement of its mark, White Claw should choose to follow the same path and ignore, rather than fight, potential infringement. Because the most practical course of action for White Claw would be to ignore potential infringement for instances, such as Wallace’s t-shirts, the need for trademark protection in the realm of e-commerce is narrowed. Therefore, should the subject matter or a similar case be brought before the court, the court should narrow the scope of trademark protection for easily producible goods, such as Wallace’s t‑shirts, which can be sold with relative ease through e-commerce, because e-commerce and social media have caused a major decrease in the benefits of trademark protection.

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[1] Stacy Ritzen, What Is White Claw—and Why Is the Beverage Inspiring Memes?, The Daily Dot (Sept. 6, 2019 12:43 PM), (last visited Oct. 13, 2019).

[2] Univeristy of Toledo Student Tries to Use Can of White Claw as Identification, (Sept. 4, 2019), (last visited Sept. 6, 2019).

[3] See id.

[4] Kate Bernot, Last Call: Turns Out, There Are Laws When You’re Drinkin Claws, The Takeout (July 11, 2019 4:33 PM),

[5] Trevor Wallace, *drinks White Claw once*, YouTube (June 25, 2019), (having 2,885,518 views). (last visited Oct. 13, 2019 2:10 PM).

[6] Ritzen, supra note 1.

[7] A cease and desist order alone has no actual legal effect. See Staff Author, Cease and Desist, Investopedia (May 24, 2019),

[8] See 15 U.S.C. §§ 1051, et seq. (2012) (providing laws regarding what constitutes trademark infringement).

[9] Bernot, supra note 4.

[10] “TRULY” is a pun referencing Truly Hard Seltzer, a hard seltzer drink sold by a competing brand;  see also The Truly Story, (2019), (last visited Oct. 13, 2019).

[11] Bernot, supra note 4.

[12] See 15 U.S.C. §§ 1051, et seq. (2012);  see also Overview of Trademark Law,, (discussing when trademark infringement has occurred). (last visited Oct. 13, 2019).

[13] See 15 U.S.C. §§ 1051, et seq. (2012);  see also Overview of Trademark Law, supra note 12.

[14] See id.

[15] 15 U.S.C. § 1125(c) (2012). Another possible cause of action could be infringement based on consumer confusion as to whether White Claw sponsored or endorsed the t-shirts, however, it seems quite unlikely that a consumer would reasonably believe that White Claw sponsored or endorsed a phrase making fun of its own product.  See id.

[16] U.S. Const. amend. I.

[17] See, e.g., Iancu, 139 S. Ct. at 2302 (holding that First Amendment rights are given greater weight than trademark prohibitions under the Lanham Act and stating “the ‘immoral or scandalous’ bar is substantially overbroad . . . the Lanham Act covers them all.  It therefore violates the First Amendment”) (ellipsis added); see also Rivera v. Carter, No. 2:09-cv-2435-FMC-VBKx, 2009 U.S. Dist. LEXIS 131958, at *28-30 n.8 (C.D. Cal. July 31, 2009) (“Neither the strictures of the first amendment nor the history and theory of anti-dilution law permit a finding of tarnishment based solely on the presence of an unwholesome or negative context in which a trademark is used without authorization. . . . A trademark is tarnished when consumer capacity to associate it with the appropriate products or services has been diminished”) (citing L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 32 (1st Cir. 1987)).

[18] See, e.g., Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252, 269 (4th Cir. 2007) (holding that a parody exception to trademark infringement existed when a company used the Louis Vuitton mark on “Chewy Vuiton” [sic] dog toys because consumers would not have a likelihood of confusion in purchasing the products).

[19] The Trademark Dilution Revision Act of 2006 (TDRA), codified as 15 U.S.C. § 1125 (2012), was passed because of Moseley. See Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003) (holding that claims under the Lanham Act for trademark dilution required proof of actual dilution).  TDRA overruled this case and established that no actual proof of dilution was required.

[20] Iancu, 139 S. Ct. at 2296.

[21] Hormel Foods Corp. v. Jim Henson Prods., 73 F.3d 497 (2d Cir. 1996) (denying relief for trademark owner of “Spam,” when a Muppet movie used a pig-like character named “Spa’am” because the fair use parody exception permitted use of the mark when there was not a likelihood of confusion in the usage of the marks);  L.L. Bean, 811 F.2d at 26 (holding that an article displaying L.L. Bean’s trademark and featured pictures of nude models in sexually explicit positions using Bean’s products was crudely humorous, thus, the parody exception exempted Defendant from infringement through the fair use parody exception).  But see, e.g., Gucci Shops, Inc. v. R.H. Macy & Co., 446 F. Supp. 838 (S.D.N.Y. 1977) (holding the fair use parody exception did not apply, because there was a likelihood of confusion for customers, when “Gucchie Goo” diaper bags were sold that had a similar design to Gucci brand bags.

[22] See 15 U.S.C. § 1025(c)(3) (2012) (codifying the trademark law exception for parody exclusions).

[23] See supra note 21.

[24] New Kids on the Block v. News Am. Publ’g, Inc., 971 F.2d 302, 305 (9th Cir. 1992).

[25] Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 163 (1995).

[26] See id.

[27] T.C., What Is the Streisand Effect?, The Economist (Apr. 16, 2013),

[28] See id.

[29] See id.

[30] See id.

[31] Many e-commerce sites allow sellers to begin advertising and selling products in a new store within minutes through certain platforms, making it quite simple for one to begin an e-commerce store.  See, e.g., Amazon, (last visited Oct. 13, 2019);  Etsy, (last visited Oct. 13, 2019).  Currently, although the number of e-commerce retailers is difficult to ascertain with precision, it is estimated that there are between twelve and twenty-four million e-commerce sites in the world.  See 50 Ecommerce Statistics to Guide Your Strategy in 2019, (Apr. 10, 2019),

[32] See Amazon, supra note 31.

[33] See Etsy, supra note 31.

[34] See generally T.C., supra note 27.

[35] See generally Simon Parkin, The Youtube Stars Heading for Burnout: ‘The Most Fun Job Imaginable Became Deeply Bleak’, The Guardian (Sept. 8, 2018 4:00 PM), (discussing the rise and fall of social media sensations).

[36] See id.

[37] See Susan Ward, Easy Ways to Get Your Small Business into E-Commerce, The Balance Small Business (Apr. 14, 2019), (discussing the ease of entering ecommerce as a retailor). (last visited Oct. 13, 2019).

[38] Even tech giants, like Amazon, struggle to verify the identity and control the products sold by third-party retailers on its own platform.  See Dave Bryant, How Chinese Sellers are Manipulating Amazon in 2019, EcomCrew (June 1019), (last visited Oct. 13, 2019).

[39] See generally id.

[40] See generally T.C., supra note 27.

[41] See infra note 55.

[42] Wallace, supra note 5 (“There ain’t no laws, when drinking Claws”).

[43] See id.

[44] See generally Lesson 3: Open Markets, Foundation for Teaching Economics (2019), (last visited Oct. 13, 2019) (discussing how the supply in the market will be replaced when a seller exits the marketplace because of the marketing being pulled toward supply-and-demand equilibrium).

[45] See infra note 55.

[46] Qualitex, 514 U.S. at 163.

[47] See Lesson 3: Open Markets, supra note 44.

[48] Jason Aten, Amazon Just Got Some Really Bad News About Banned Products on Its Site. Its Response Says a Lot About the Company, Inc. (Aug. 23, 2019), (discussing the extent of products on Amazon that are banned or mislabeled).

[49] See infra note 53.

[50] Coca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183 (E.D.N.Y. 1972).

[51] See id. at 1186.

[52] See id. at 1191, 1193 (enjoining the appropriation and use of products, “where the resemblance is so close as to be likely to produce confusion as to such identity to the injury of the corporation to which the name belongs”).

[53] The Enjoy Cocaine logo is still being sold at many retailers and has not since been brought back to court.  See, e.g., Amazon, (last visited Oct. 13, 2019); Etsy, (last visited Oct. 13, 2019); teeshirtpalace, (last visited Oct. 13, 2019).

[54] See, e.g., TeeShirtPalace, (expanding the market of “There ain’t no laws, when drinking Claws” shirts into the market of clothing for babies and children). (last visited Oct. 13, 2019);  BelleLily,‑no‑laws‑when‑youre‑drinking‑claws‑t‑shirt‑tee‑black‑g‑55905?vsid=33873&gclid=EAIaIQobChMIwp75tb‑a5QIVyp6zCh3zxQ3vEAkYBCABEgKAHvD_BwE (expanding the market of “There ain’t no laws, when drinking Claws” shirts into shirts with additional features of political figures drinking) . (last visited Oct. 13, 2019);  Etsy, (expanding the market of “There ain’t no laws, when drinking Claws” into the market of hats, key chains, and many other accessories). (last visited Oct. 13, 2019).

[55] See supra notes 50, 53.