Yesterday’s post debated on why we need to animate our marks, we serve our readers today with a casserole of movie marks. Intrigued? We hope so.
Today’s casserole contains the magic ingredient of “Hurt Locker” which you are well aware; picked up quite a few awards on movie night at the 82nd Oscars.One of which was the best director award received by Kathryn Bigelow, the first woman director to ever do so. I believe a sprinkling of trivia never did hurt anyone, so did you know that the term, “Bigelow”, has been registered for woven carpets and rugs? Also applications have been filed for this mark under goods as diverse as Tea and Seasonings to honey spreads to prerecorded CDs featuring music, kitchen thermometers, even to personal care products, namely after shave!
Also, the mark “Hurt Locker” has been applied for by “The Ontario Knife Company under the description of Knives bearing the US trademark serial number of 77517894. So have Miss Bigelow and her team or the production house sought permission to use the mark? They may need to do so soon, if they choose to market merchandise of the movie. My first guess would be marketing the term HURT LOCKER for combat jackets, would go well with the theme of the movie.
Not only “Hurt Locker” but you will find numerous cases of movie titles the likes of “7th Heaven”, “American Dream” or “Blind Side” being trademarked by various owners. While on the subject, Bigelow’s ex-husband, Cameron’s movie, “AVATAR” also has been a favorite with trademark owners. The term “AVATAR” has been applied for goods like hockey sticks to bicycles to White Mineral Oil!
There are also an equal if not numerous number of film and television titles that havent been applied for as trademarks because they can’t work as badges of origin. The mere use of the title in cinemas and broadcasting doesn’t mean the owner will offer goods or services by reference to the title.
This issue played centre stage when a Melbourne-based writer and composer registered the trade mark The Hunchback of Notre Dame for ‘entertainment services’. He then sued Disney in the Federal Court of Australia for trade mark infringement after it released the animated feature “Disney’s Hunchback of Notre Dame”. The action failed because Disney said that it hadn’t used the title as a trade mark.
Merchandising is in fact the key to titles becoming trade marks, or at least the key to ensuring that the title has a secondary meaning that functions as a trade mark. This is how in 2000 Channel 7 blocked a trade mark application for “Home and Away” which covered cosmetics and perfumes. While Channel 7 did have a prior trade mark registration for its successful “Home and Away” television soapy covering entertainment services and some merchandise, it didn’t have a registration covering cosmetics and perfume. But it was found that the show was so well-known through broadcasting and merchandising that third party use on cosmetics and perfume was likely to cause consumer deception.
One wonders what might have happened had not Twentieth Century Fox blocked a Sylvania Waters’ man from registering “Braveheart The Musical” for a ‘theatre musical production’ and T-shirts, caps.’ This was despite Fox failing to establish that the movie title “Braveheart” was a trade mark. So how did Fox win? It showed that “Braveheart” was a famous film that had been extensively promoted in the media and on souvenir merchandise items. Fox also blocked an application for “Die Hard” covering eyewear, jewelry, watches, skateboards, skates and surfboards. Although Fox lacked a registration covering these items, it proved that its Die Hard movie series starring Bruce Willis were so well known in Australia through promotion and merchandising that the title had acquired a reputation as a trade mark prior to the offending application. Fox won despite ‘die hard’ having an ordinary English meaning as a ‘person who resists change’.
Based on its rights to the 1939 motion picture The “Wizard of Oz” starring Judy Garland, The Turner Entertainment Company blocked a Queensland woman from registering “The Wizard of OZ” and a map of Australia logo for various merchandising products and services. However, it failed to block the Queensland woman from registering her marks for many other products and services (including leather goods, alcohol and coach tours) as these were not ‘usually associated with the marketing or licensing of motion picture names.’
On the same note, Time Warner’s failure to block the registration of Matrix Eyewear for optical products in the face of the notoriety of the sunglasses worn in the Matrix movies, came as a surprise. The term ‘matrix’ was found to be a ‘common place signification’ which would not mislead consumers if applied to eyewear by someone other than Time Warner. Surprisingly, however, there was ‘no evidence’ that the studio had engaged in extensive merchandising.
So go ahead grab that mark, find yourself a director and you’re set to walk the red carpet!