dissenting:
The issue presented in this case is whether defendants’ T-shirts infringe federally registered trademarks owned by Anheu-ser-Busch. A jury found no infringement. But the district court, finding insufficient evidence to support the jury’s decision, entered judgment notwithstanding the ver-*325diet. The court today reverses, reinstating the jury verdict.
The court rests its decision on three related grounds: (i) the jury’s finding of no likelihood of confusion is supported by differences between defendants’ T-shirt design and the Budweiser label; (ii) defendants’ T-shirt design withstands scrutiny under Pizzeria Uno Corp. v. Temple, 747 F.2d 1522 (4th Cir.1984); and (iii) defendants’ parody defense also supports the verdict. I disagree with this assessment of the evidence and in certain respects with the characterization of the law that precedes it.1
I
Few can disclaim familiarity with the Budweiser label design.2 It has been used by Anheuser-Busch as a trademark on beer cans since 1876 and on clothing since 1967. It has been the subject of extensive advertising. And it has been used to market several thousand products, including T-shirts sold in seaside stores. In short, it is, as the district court observed, “one of the strongest marks in this country, indeed in the world.”
Not surprisingly, defendants concede that the strength of the trademark, the “paramount” consideration in the seven-factor analysis, Pizzeria Uno, 747 F.2d at 1527, favors Anheuser-Busch. Defendants further admit that three other factors support Anheuser-Busch’s claim: (a) the similarity of the parties’ goods (T-shirts),3 (b) the similarity of the outlets where such goods are sold (beach-front stores), and (c) the similarity of the parties’ advertising.
That leaves a trio of considerations to support the jury verdict in favor of defendants — actual confusion, defendants’ intent, and design similarities. I will consider each in turn.
Agreeing with the district court, the court in this case finds no proof of actual confusion between the Budweiser label design and defendants’ T-shirt. That is a mistaken view. Anheuser-Busch did present evidence of actual confusion. Michael Kroshinsky, one of defendant Wings’ wholesale purchasers, testified that his initial reaction to the T-shirt was that it “was a copy of a Budweiser shirt.” Such proof is “substantial evidence” of likely confusion, AMP Inc. v. Foy, 540 F.2d 1181, 1186 (4th Cir.1976), particularly when it is a professional buyer who has been confused. This consideration thus also helps Anheu-ser-Busch.4
There also was evidence of intentional copying. Michael Berard, the founder of Venture Marketing and the designer of defendants’ T-shirt, admitted that he intended to copy the Budweiser label design. This evidence creates a presumption of likelihood of confusion. Osem Food Indus., Ltd. v. Sherwood Foods, Inc., 917 F.2d 161, 165 (4th Cir.1990). The court does not dis*326cuss this factor in its application of Pizzeria Uno. Instead, in Part IV of the opinion, it suggests that an exception to the presumption should apply when a defendant asserts that he intended to parody a particular trademark. I am not persuaded that such an exception is applicable here. It is true that parody requires a degree of imitation. But the burden of disproving infringement should rest on one who intentionally uses another’s trademark — even as parody. If the parody is strong, the burden will be light. If it is not, then a heavy burden is appropriate since the junior user is likely to benefit from its continuing affiliation with the “drawing power,” Mishawaka Rubber & Woolen Mfg. Co. v. S.S. Kresge Co., 316 U.S. 203, 205, 62 S.Ct. 1022, 1024, 86 L.Ed. 1381 (1942), of the senior user’s mark. In short, I would not jettison this presumption in the parody context, and would find that this consideration favors Anheuser-Busch.
II
The court today relies, as it must, on the final factor — the similarity between the senior user’s mark and the junior user’s design. It gives “decisive weight” to the “predominant differences” between the T-shirt design and Anheuser-Busch’s mark. In emphasizing this consideration, the court extends precedent and ignores the facts of this case.
A
To be sure, the court is correct in the abstract: that is, design differences can be determinative. “[S]ome threshold of intrinsic similarity” between marks is required before the “extrinsic” factors come into play. But I know of no precedent that allows conclusive weight to be given to this factor when a party has borrowed a distinctive mark, without making any discernible changes to it, and placed that mark on identical products marketed through identical commercial channels.
B
Even if as a legal matter the Pizzeria Uno analysis could be configured in such a manner, the evidentiary foundation for such an analysis is lacking here.5 In the court’s view, what sustains the imitation are the words added to the Budweiser design. These words dispel confusion, the court maintains, in two ways: (i) the words are different from the language ordinarily appearing on a Budweiser beer can (i.e., “Myrtle Beach” is substituted for “Budweiser”) and (ii) the words parody the Budweiser slogans and beer can (i.e., “This Beach Is For You” is substituted for “This Bud Is For You”). Neither argument is persuasive.
1
The court begins its “different words” analysis by emphasizing that defendants’ T-shirt design makes “no reference of any sort to Anheuser-Busch or Budweiser.” That by itself is of no importance. It is enough that the T-shirt adopts the Budweiser label design. This symbol needs no verbal cue to call Budweiser to mind. The symbol characterizes the name as much as the name does the symbol. It also is a separately registered trademark. For that reason, T-shirts bearing the non-verbal Budweiser label design, and nothing more, would infringe Anheuser-Busch’s trademark.
True, defendants did not simply refrain from mentioning Budweiser or Anheuser-Busch by name; they also added language descriptive of the beach. Putting aside consideration of this language as a matter of parody, I suggest that the added words still fail to eliminate the connection to'An-heuser-Busch that follows from use of the Budweiser label. First, the subject matter of the substituted words is not foreign to Anheuser-Busch, Budweiser, or even to *327beer. To the contrary, the “beach” is a familiar theme in Budweiser advertisements. Second, the substituted words do not rid the T-shirt of a Budweiser connection. Neither “Myrtle Beach,” which is a location not a company name, nor any of the other words establishes that a corporation other than Anheuser-Busch sponsors the T-shirt. Anheuser-Busch in fact has used its label frequently to endorse non-beer items.6 Nor does the fine-print reference to “Venture Marketing, Inc.” tend to eliminate confusion. Anheuser-Busch requires its licensees’ names to appear on their products.
2
That brings me to the question of parody.7 Parody is not an affirmative defense to an infringement claim.
Rather, it is merely a way of phrasing the argument that confusion is unlikely. Because the purpose of trademark law is to protect the public from confusion, it would make no sense to say that a “parody” which is likely to confuse is permitted merely because it is a “parody.”
2 McCarthy, Trademarks and Unfair Competition, § 31:38, at 671 (2d ed. 1984). In this instance, the “parody” does little to prevent consumer confusion as to the sponsor of defendants’ T-shirt. It does not ridicule Budweiser or offer social commentary on the evils of alcohol.8 Nor could it be deemed “so obvious and heavy handed that a clear distinction was preserved in the viewer’s mind between the source of the actual product and the source of the parody.” Mutual of Omaha Ins. Co. v. Novak, 648 F.Supp. 905, 910 (D.Neb.1986), aff'd, 836 F.2d 397 (8th Cir.1987), cert. denied, 488 U.S. 933, 109 S.Ct. 326, 102 L.Ed.2d 344 (1988).
All that it does is play on the words of the Budweiser label, adopting a theme (the beach) and a method (humor) that is fully consistent with Anheuser-Busch’s marketing efforts. See Cliffs Notes, 886 F.2d at 494 (requiring two marks to send “contradictory” “messages”). Moreover, since the attempted parody does not dissociate defendants’ T-shirt from Anheuser-Busch’s products, consumers will be just as likely to buy the T-shirt because of its continuing affiliation with Anheuser-Busch as because of its humor. That danger is particularly acute here since Anheuser-Busch and defendants compete in the same market. The parody here thus amounts to nothing more than a “merchandising short-cut,” S.S. Kresge Co., 316 U.S. at 205, 62 S.Ct. at 1024. I conclude that the parody defense falls far short of supporting the verdict.
I agree with the district court that defendants’ use of the Budweiser label design in the manner depicted in the Appendix establishes infringement as a matter of law.
I respectfully dissent.
. I doubt that the likelihood-of-confusion determination is any more "amenable to resolution by a jury,” as the court suggests, than other questions of fact. It may be less so. Some courts of appeals have concluded that this determination is a legal one. See Cliffs Notes, Inc. v. Bantam Doubleday Dell Pub. Group, Inc., 886 F.2d 490, 495 (2d Cir.1989); Wynn Oil Co. v. Thomas, 839 F.2d 1183, 1186 (6th Cir.1988). Although this circuit has said that the question is factual, see Durox Co. v. Duron Paint Mfg Co., 320 F.2d 882, 884 (4th Cir.1963), there is no reason to conclude that the jury’s resolution deserves special deference.
. At issue primarily is defendants’ use of the non-verbal Budweiser label design, a separately registered trademark. Other protected marks also adorn Anheuser-Busch products, such as the trade name itself, "Budweiser," which defendants have not appropriated, and a variety of slogans (i.e., "This Bud’s For You," "The King of Beers"), which defendants allegedly also have appropriated. My focus is on defendants’ infringement of the label design.
. This concession also is significant. The similarity of products suggests not only that Anheu-ser-Busch may lose revenue for each sale by defendants but also, and perhaps more importantly, that a likelihood of confusion is apt to follow. Cf. Yale Electric Corp. v. Robertson, 26 F.2d 972, 974 (2d Cir.1928) ("unless the borrower's use is so foreign to the owner's as to insure against any identification of the two, it is unlawful”).
. The argument that Mr. Kroshinsky’s testimony is not indicative of actual confusion is unpersuasive. Moreover, this argument does not present an obstacle to Anheuser-Busch’s claim. The Lanham Act affords protection if confusion is “likely.” Trademark owners may invoke the statute — and prevail under it — without establishing actual confusion. Shell Oil Co. v. Commercial Petroleum, Inc., 928 F.2d 104, 108 (4th Cir.1991).
. Notably, Venture Marketing, the defendant responsible for producing the T-shirt design, conceded that this factor favored Anheuser-Busch during oral argument on the motion for judgment notwithstanding the verdict.
. For example, Anheuser-Busch has produced a T-shirt bearing the Budweiser label, the words "Trap Skeet,” and a drawing of shotgun shells and skeet. It has also used the label in promotions affiliated with various geographical sites.
. Parody is (i) "[a] literary or artistic work that broadly mimics an author’s characteristic style and holds it up to ridicule" and (ii) "[a] performance so bad as to be equivalent to intentional mockery.” The American Heritage Dictionary of the English Language, at 954 (1976).
. Only parody in this "editorial or artistic” sense serves sufficiently strong First Amendment values to override government interests in trademark protection. See L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 32-33 (1st Cir.1987). Such would be the case, for instance, if Mothers Against Drunk Driving marketed T-shirts bearing a caricature of the Budweiser trademark. (In that context, incidentally, consumers would purchase the T-shirts precisely because they were not affiliated with Anheuser-Busch. That is not true here.) I would conclude that defendants’ commercial speech, whose avowed aim was to convey "how great Myrtle Beach is,” is not protected by the First Amendment from enforcement of the Lanham Act.