Game of Groans

HBO, the producers of the popular television series GAME OF THRONES has filed an opposition [91244050] against two trademark applications filed by The Trustees of Rancho Santa Ana Botanic Garden to register the marks GAME OF THORNS and this stylized version:

HBO alleges that the Botanic Garden’s use of GAME OF THORNS is likely to cause confusion:

However unless the thought is that consumers won’t notice the difference between THRONES and THORNS, or are likely to believe that HBO misspelled its name, confusion seems unlikely.  HBO also alleges dilution:

It does not seem that a botanic garden is likely to tarnish the image of the world of Westeros and Essos, and as with the likelihood of confusion, tarnishment by blurring would seem to require that consumers won’t notice the difference between THRONES and THORNS, or are likely to believe that HBO misspelled its name.

The Botanic Garden is  clearly making a pun — one of those groan-inducing jokes based on words that sound similar but have dissimilar meanings.  While many regard puns as the lowest form of humor, are they prohibited by trademark law?  It seems that if most people get the joke, there can be no likelihood of confusion or dilution, because getting the joke relies upon knowing the difference between a throne and a thorn.  Not getting the joke, however, might indicate at last a possibility of confusion, and trademark law might apply.

While we don’t want trademark law interfering with good jokes, if it can stop bad jokes, that’s probably a good thing.  We will have to wait to see whether or not the TTAB gets the joke.

qech wej QaD trademark nIH (Trademarks Don’t Protect Ideas)

Lucas Film Limited has sued Michael Brown and his Light Saber Academy for trademark infringement, unfair competition, dilution, cybersquatting, state unfair competition, and dilution, arising from Mr. Brown’s running an academy promoting, producing, offering for sale and selling unauthorized “Lightsaber” classes, which purport to teach students how to use “Lightsabers” and/or perform as “Jedi.”

lightsaber_academy

The Academy appears to claim trademark rights in LIGHTSABER ACADEMY, tagging it with a TM, and has adopted a logo that is similar to the Jedi logo created by Lucas Film:

jedi_logo

But what should Mr. Brown call his school for teaching the use of lightsabers? Doesn’t he have a right to truthfully describe his services to potential customers? Of course he does.  Trademarks only protect against confusion of source.  Mr. Brown has the right to describe his activities, and even use the trademark of others in doing so, as long as he does not cause confusion, mistake or deception. Whether crossed that line, Mr. Brown has, is now for the Northern District of California to decide.

Lucas Films v. Brown raises an interesting question of what rights creators retain when their works become part of the cultural commons?  There are many instances where an idea introduced by a popular book or movie is developed by third parties, and as long as copyrights are not infringed, and the public is not likely to be confused, those ideas become part of our cultural commons free for all to use.  For example, there is a Klingon Language Institute (http://www.kli.org/) to learn Klingon, the language of the fictional Klingon race in Star Trek.

It will be interesting to see what happens, but it’s important to remember the old Klingon proverb: qech wej QaD trademark nIH! (Trademarks don’t protect ideas).