Yes, it’s all bench racing but caselaw provides some small manner of clairvoyance.

I think it really depends on jurisdiction. If it was adjudicated somewhere with the Roger’s test, I think it would have a very decent chance. For example, take Seuss v Comicmix, in which Comicmix didn’t sufficiently meet the bar for parody on copyright grounds but cleared trademark fair use.

https://www.lexology.com/library/detail.aspx?g=ebdcd5aa-17b1...