Oprah Sues Podcast About Oprah For Branding That Includes Oprah Trademarks
from the Oh-prah-lease! dept
Being the “Queen of Talk,” perhaps it’s no surprise that Oprah Winfrey has made it onto Techdirt’s pages plenty of times in the past. To be fair to her, most of the posts we’ve done concern her being on the receiving end of typically silly intellectual property disputes. That being said, Oprah and her company, Harpo Inc., have also been willing to be quite aggressive in protecting her branding and intellectual property.
Which brings us to the present, where Harpo Inc. is suing a podcast put out by history professors as a journalistic product covering the history of Oprah and her show.
Harpo Inc., which owns her trademarks, carefully vets any licensing opportunity. Now it’s taking a podcasting duo to court over what it says is an unauthorized attempt to capitalize on “The Oprah Effect.” Harpo Inc. is suing Kellie Carter Jackson and Leah Wright Rigueur over their Oprahdemics podcast.
Roulette Productions launched Oprahdemics in March and ended its first season with a live show at the Tribeca Film Festival in June. Its key art, which is embedded below, includes a dictionary-style definition of the term — defined as “the study of the Queen of Talk” — as well as a large O and the outstretched arms of a woman. The defendants also operate oprahdemics.com and multiple social media sites.
According to Harpo Inc., this branding misleads the public into thinking that Oprah is somehow involved in all of this. Please note that that’s the sole claim here. To Harpo’s credit, the company isn’t asking for monetary damages or profits from the podcast. It doesn’t want the podcast shut down or the subject matter to change.
“However, Harpo submits that the Court should enjoin Defendants from wrongfully creating a new brand incorporating Harpo’s trademarks and making trademark use which is dilutive of and constitutes misuse of Harpo’s OPRAH and O family of trademarks and explicitly misleads consumers as to the source and/or sponsorship of Defendants’ branded offerings.”
And yet, this is still dumb. It’s a journalistic podcast about Oprah. There is no feasible way to create a coherent brand image for that podcast that does not somehow reference the subject matter. Nominative fair use, in other words. Add to all of that the fact that this podcast and its branding are very clearly in the realm of speech protected by the First Amendment, and suddenly this alleged infringement is protected from the very claims Harpo Inc. is making.
However, use of another’s trademark is permissible if it qualifies as fair use. The fair use doctrine, consistent with the First Amendment, allows a person to use another’s trademark either in its non-trademark, descriptive sense to describe the user’s own products (classic, or descriptive, fair use) or in its trademark sense to refer to the trademark owner or its product (nominative fair use). The Lanham Act expressly protects fair use from liability for trademark infringement, dilution and cyberpiracy.
And while I’m pretty sure this suit should fail given all of that, it’s also very strange that the suit was ever filed in the first place. This podcast is essentially a celebration of Oprah and no harm will come to her or her intellectual property rights due to the image above.
So why is Harpo doing any of this to begin with?