Disney Gets Early Loss In Trademark, Copyright Suit Against Unlicensed Birthday Party Characters

from the knock-it-off-knockoffs dept

Late last year, we discussed a lawsuit brought by Disney against Characters For Hire, a small company that sends costume characters to children's birthday parties. Those characters, as we said at the time, are barely-altered clear homages to storied Disney-owned characters, such as Dark Lord (Dearth Vader) and Big Hairy Guy (sigh, Chewbacca). While Disney sued over both trademark and copyright, the alterations to the characters and the very clear disclaimer Characters For Hire puts on its site and documents meant the chances for confusion as to Disney's affiliation was always non-existent. When you add that the changes in the characters and the medium in which they were offered at least partially put us in the idea/expression dichotomy zone for copyright law. That part of the law essentially says copyright applies to specific expressions (written stories, film, music, and sometimes characters), but not general ideas (a Dark Lord, a, sigh, Big Hairy Guy).

Well, nearly a year later, the first legal returns have come in and they are not great for Disney.

On Thursday, a New York federal judge refused to grant summary judgment in favor of Disney in its ongoing case against Nick Sarelli, alleged to run a "knock-off business ... built upon the infringement of Plaintiffs' highly valuable intellectual property rights."

What's more, U.S. District Court Judge George Daniels threw out most of Disney's trademark claims against a defendant who will send out individuals dressed as "The Princess" (meaning Leia) or "Big Hairy Guy" (meaning Chewbacca) for special events.

Daniels recognizes some similarity, but isn't buying that Disney and Sarelli compete in the same business nor that Sarelli's customers are likely to be confused. The judge makes the point that it's "adults, not children" who plan parties and there's no evidence of actual confusion.

This is roughly as predicted in our original post. The trademark claims were far less likely to succeed due to all the steps Characters For Hire took to explicitly make sure that the public wasn't confused when buying from it. Disney's evidence mostly amounted to customer reviews for the Characters For Hire that occasionally referenced the original characters being paid homage, but the judge found that even in those comments there was nothing indicating confusion. Instead, it seemed that parents knew full well they were buying so-called knockoffs, making the trademark claims unwarranted. The only trademark claim that survives for trial, if it gets that far, will be for dilution.

The court also refused summary judgement for the copyright portion of Disney's claims, noting that Disney's lawyers presented for evidence poor-quality screenshots of Characters For Hire's website, including screenshots of site pages no longer active, but which were instead grabbed from the Internet Archive. The copyright claims, however, will go to trial, assuming Disney lets it get that far after these early losses.

The more likely outcome is that a settlement will be reached. With so little left to argue, Disney surely can't want to throw money for lawyer's fees just to keep some kids from having fun at their birthday parties... can it?

Filed Under: birthday parties, characters, copyright, trademark
Companies: disney

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    Stephen T. Stone (profile), 15 Aug 2018 @ 2:21pm



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