Capitol CitiesABC Inc., the Ninth Circuit court delineated between commercial and noncommercial speech. 26 In Hoffman, a magazine printed unauthorized altered images of Dustin Hoffman and others.H5 used over 3,000 trademarked logos and mascots without permission as backgrounds, plots and characters.The inhabitants include AOL messengers, Pringles men, and Michelin men.
Ronald McDonald is the villain, who kills a foul-mouthed Haribo boy and takes the Big Boy burger boy hostage. The Esso Girl is the heroine who escapes the X-Box earthquake causing California to sink into the ocean until the new state outlines are a Nike Swoosh. LOGORAMA is a spectacular movie, but many question whether it is legal under the Lanham Act and the 2006 Trademark Dilution Revision Act. Since their trademarks were utilized without permission, all of the depicted trademark owners would seem to have claims for infringement and given the crude and violent nature of the filmclaims of dilution by tarnishment as well. Film Logorama Free Speech AsHowever, recent legislative interpretation and judicial proceedings appear to indicate that LOGORAMA is a commercial use eligible for the non-commercial use exception under the Trademark Dilution Revision Act and protected free speech as parody under the First Amendment. For example, in Caterpillar Inc., v. Walt Disney Co., Caterpillar sought to enjoin the release of Disneys George of the Jungle 2 movie because the exact Caterpillar trademark was depicted on Caterpillar bulldozers used throughout the movie. Most of the marks used in the film are merely present in the film and representative of nothing more than themselves. There is no presence of competing marksthe marks used were specifically chosen because they were recognizable national brands that reference themselves and no other product. Here there are no competing brands so nominative fair use is inapplicable, other then a stretched argument that LOGORAMA does not use the brands more then is necessary than to describe the world it creates.ref Like in Caterpillar, it cannot be said that the LOGORAMA film competes with or substitutes the market for the logos depicted in the film, whose products range from oil, fast food, toothpaste, financial services, etc. It is unlikely that the public would think these trademark owners have branched into the film industry, much less as a collective. The sheer abundance of trademarks utilized also weighs against consumer confusion. It is hard to imagine that a reasonable person would watch LOGORAMA and believe that 3,000 trademark owners had functioned together to sponsor the film. Audiences are accustomed to seeing trademarks in movies, and do not tend to assume from their presence that the trademarks depicted represent an endorsement or other indication of origin. ![]() In Caterpillar, the court focused on whether the mark was used to drive sales of the film, and found that it was not. The use of the logos certainly called the film to the publics initial attention; however, it was the expressive, and not commercial, use of these marks that was the heart of the film. LOGORAMA was first available, and remains, free online its commercial success can be attributed to winning the 2010 Academy Award rather than the mere use of the marks. Toys R Us v. Akkaoui, 40 U.S.P.Q.2d (BNA) 1836 (N.D. ![]() In LOGORAMA it is these famous marks that make up the lead characters, responsible for the cursing, sex, and extreme violence that drive the plot. However, the remaining national brands used as buildings, geography, vehicles, and street signs may be eligible for consideration under the requirement of harm to reputation due to their inclusion in the film that features hyper language, sex, and violence. H5 specifically chose 3,000 famous national brands for use because they wanted them to be widely recognized by the public. However, on this claim LOGORAMA can be argued to be a protected free speech parody under the non-commercial exception of the Trademark Dilution Revision Act. Capitol CitiesABC Inc., the Ninth Circuit court delineated between commercial and noncommercial speech. In Hoffman, a magazine printed unauthorized altered images of Dustin Hoffman and others.
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