Have you heard of the Federal Trademark Dilution Act? Perception is irrelevant. The law specifically states that "the likelihood of confusion, mistake, or deception" is meaningless. All that matters is that an attempt at dilution is occurring.
There are two ways dilution can occur: "blurring" or "tarnishment." I don't really think blurring would count in this case, so I won't get into it, but tarnishment sure does. The courts define tarnishment as "an unauthorized use of a mark which links it to products that are of poor quality or which is portrayed in an unwholesome or unsavory context that is likely to reflect adversely upon the owner's product." That is PRECISELY what the Agitproperties guy is doing.
Because the Agitprop guy did this to intentionally dilute the power of the trademark, he is risking a severe butt-kicking in court:
Ordinarily, only injunctive relief is available under the new law. However, if the defendant willfully intended to trade on the owner's reputation or to cause dilution of the famous mark, the owner of that mark may also be entitled to other remedies available under the United States Trademark Act, including defendant's profits, damages, attorneys' fees, and destruction of the infringing goods.Those "damages" can be treble damages, by the way.
Oh, and you can forget the "First Amendment" BS. The law specifically allows for three cases in which the First Amendment trumps the law:
(1) "fair use" of a mark in the context of comparative commercial advertising or promotion;I made it very clear in my original thread that it is the fact he is SELLING the t-shirts that will be his undoing. Any First Amendment protection falls apart when the only point of the so-called "political speech" is to turn a profit via the unauthorized use of someone else's protected trademark.
(2) non-commercial uses, such as parody, satire and editorial commentary; and
(3) all forms of news reporting and news commentary.
If Mr. Agitproperties wants to GIVE his t-shirts away, more power to him, and the courts will back him up. When he's just trying to hide behind the 1A in order to protect his newfound way of STEALING, the courts are going to tear him to shreds.
Now one must define unwholesome or unsavory. You go on to make a legal point about the selling of the t-shirts as though that somehow proves that Fox "had" to issue a desist request but you stopped there.
What you haven't done is show that the trademark would be lost by a failure to act on the part of Fox.
If this were to proceed to court many arguments could be made and I would hope one of them would be whether the trademark "replica" was accurate enough to be confused with the true trademark but I merely pointed out that Fox need not have made a big deal of this unless they were prepared for adverse publicity.