Posted On: March 27, 2011

Zumba Fitness Sues Trademark and Copyright Infringement and Counterfeiting

fitness-dvd-copyright-trademark-attorney-ebay-zumba.jpgLos Angeles, CA – Zumba Fitness has filed several lawsuits accusing eBay sellers of counterfeiting its fitness DVDs and infringing its trademarks and copyrights. Zumba® Fitness is a Latin-inspired dance-fitness program that combines international music with dance steps to create an aerobic exercise regimen. Plaintiff alleges that over 10 million people take weekly Zumba classes worldwide. Plaintiff owns numerous copyright registrations and USPTO trademark registrations for Zumba related products and services.

Plaintiff alleges that in its ongoing investigation of counterfeit sales of Zumba products, its private investigator purchased an allegedly counterfeit “Zumba 4 DVD Box Set” from the Defendants. “The inspection of the purchased item confirmed that the item Defendants sold to the investigator was in fact a counterfeit and an unauthorized Zumba 4 DVD Box Set.” Plaintiff also asserts claims for unfair competition, trademark dilution, and unjust enrichment.

The case is Zumba Fitness, LLC v. Brenda Buxton, CV11-02135 CAS (C.D. Cal. 2011).

Posted On: March 24, 2011

Screenwriter Sues Disney/Pixar For Copyright Infringement Over Cars Animated Movie

copyright-infringement-attorney-idea-submission-cars-movie.jpgLos Angeles, CA – Screenwriter Jake Mandeville-Anthony is suing Disney and Pixar for allegedly infringing his copyrights through their release of the animated motion picture “Cars”. Plaintiff claims that beginning in 1992, he drafted screenplays, treatments, synopses, and character lists documenting his cartoon car characters’ stories. His “Cookie & Co.” work was based on the true-life stories of two racers in the “London to Sydney vintage Car Endurance Rally.” And his second work, also titled “Cars”, included a treatment, sample screenplay, synopses, ten character sketches, and a marketing/merchandising plan.

Plaintiff claims that Disney had access to his works because he mailed copies to Disney in ’92, ’94, and ’96. He also claims that Pixar had access to the works because he personally presented them to employees of Lucasfilm, which employees later left to join Pixar.

The complaint alleges several similarities between Plaintiff and Defendants’ works: “Plaintiff’s oldest cartoon car character was named ‘Stanley.’ Defendants used the identical name, ‘Stanley,’ for one of their oldest car characters, with a visual appearance substantially similar to Plaintiff’s. Both characters are drawn as a Model T Ford.”

In addition to the copyright infringement claim, there’s also a breach of implied-in-fact contract (idea submission) claim: “Plaintiff’s disclosure of the ideas for ‘Cars’ to Defendants was conditioned upon Defendants’ agreement to pay for the use of the ideas. As a result of Plaintiff’s disclosure of his ideas on the terms and conditions alleged above, Defendants an Plaintiff entered into an implied-in-fact contract that required Defendants to compensate Plaintiff for its use of Plaintiff’s novel ideas related to ‘Cars’ and to ensure Plaintiff received appropriate credit for any production based on Plaintiff’s ideas.”

It will be interesting to see if Defendants can defeat the claim like Dreamworks recently did (see here). The case is Jake Mandeville-Anthony v. The Walt Disney Company, CV11-02137 VBF (C.D. Cal. 2011).

Posted On: March 20, 2011

Madame Tussauds Sued Over Evel Knievel Copyrights and Right Of Publicity

Los Angeles, CA – The late Evel Knievel was a motorcycle daredevil whose crashes made him more famous than his successful jumps. Lawsuits continue regarding ownership of the copyrights in his pictures and film clips. In 2005, Gary Schreiber sued Knievel in Nevada District Court for a declaration of validity of a 1982 written transfer of copyrights to pictures and films made by Knievel (story about the suit is here). While the Nevada lawsuit is still pending, Schreiber has now filed a copyright infringement and right of publicity lawsuit against Madame Tussauds, the leisure/tourist attraction featuring wax sculptures and figurines of celebrities.

copyright-attorney-evel-knievel-abc-espn-lawsuit.jpg


Plaintiff Schrieber alleges that Evel was in need of capital to resurrect his career and Schrieber purchased the rights to Evel’s films and the films themselves via written agreement in 1982. Plaintiff then produced two compilation films entitled “Evel Knievel’s Specacular Jumps” and “The Last of the Gladiators.” Schreiber alleges that at some time, Knievel once again sold or licensed the same rights – previously granted to Schreiber – to Madame Tussauds without Schrieber’s knowledge. The case is Raymond Gary Schreiber v. Tussauds Attractions Ltd., et al., CV11--2115 DSF (C.D. Cal. 2011).

Posted On: March 14, 2011

Oral Copyright License Of Ben Hogan Photographs Predictably Ends In Lawsuit

copyright-license-photo-contract-oral-agreement-ben-hogan-image-lawsuit.jpgLos Angeles, CA – An oral agreement is usually not the greatest way to memorialize the parties’ duties and rights for copyrighted material, and this is certainly not the first or last such dispute. See here. Plaintiff JanKris Vineyards entered into an oral copyright license agreement with photographer Jules Alexander to use six photographs of golfer Ben Hogan on wine labels for six years. JanKris contends that the oral license did not limit the use of the photographs other than on wine labels and in marketing of such wines. Also, JanKris alleges that the parties agreed that JanKris could make a derivative work of one of the photographs by replacing a cigarette in Ben Hogan’s hand with a glass of wine.

JanKris then used the licensed photographs on its wines and marketing, which included agreements with PGA Magazine to run advertisements and a licensing agreement with Calloway for Ben Hogan’s publicity rights. JanKris alleges that in an attempt to renegotiate the terms of the license, Alexander asserted copyright infringement claims against PGA Magazine and Calloway, which included assertions that JanKris did not have the right to use the photograph of Hogan holding a wine glass. Based on Alexander’s alleged threats, JanKris claims that Calloway denied a license to use Ben Hogan’s name in the Far East, resulting in damages of more than $1 million a year.

In addition to monetary damages, JanKris seeks declaratory relief of copyright non-infringement because the works allegedly fell into the public domain. JanKris contends that because the photographs were taken in the 1950’s, the works fell into the public domain when they were first published without proper copyright notification prior to the 1976 Amendments to the Copyright Act. And, defendant did not seek a copyright registration until 1998. The case is Veris Management Co. v. Jules Alexander, CV11-01962 VBF (C.D. Cal. 2011).

Posted On: March 6, 2011

Tacori Loses Crescent Jewelry Design Copyright And Trade Dress Temporary Restraining Order

tacori-crescent-copyright-trade-dress-tro-jewelry-temporary-restraining-order.pngLos Angeles, CA – Tacori Enterprises sued Scott Kay for copyright and trade dress infringement over sales of jewelry incorporating a repeating crescent design. Tacori filed an ex parte application for a temporary restraining order to prevent further sales of Scott Kay’s Heaven’s Gate Collection that allegedly infringes Tacori’s purported copyrights and trade dress.

Although the Court found that Tacori is likely – because of the “extremely low burden” – to establish copyright ownership, Tacori had not shown that “it is likely to pass either the extrinsic or intrinsic test” to prove infringement. The extrinsic test “requires a court to examine the similarities between the copyrighted and challenged works and then determine whether the similar elements are protectable or unprotectable.” “The intrinsic test is a subjective comparison that focuses on whether the ordinary, reasonable audience would find the works substantially similar in the total concept and feel of the works.”

The Court relied on Scott Kay’s submission of third-party evidence having similar elements of the crescent design at issue to find that many of the design elements were likely not protectable. As for the intrinsic test, the Court found it unlikely that a reasonable audience for the rings “would find them substantially similar in total concept and feel in light of their differences.”

In evaluating the functionality prong of the trade dress claim, the Court found that “[b]ased on the evidence submitted regarding the common use of crescent designs on rings, if Plaintiff was granted exclusive use of its Reverse Crescent Trade Dress, it would likely put its competitors at a significant, non-reputation-related disadvantage.” Also, the use of the common crescent design by others proved detrimental to Tacori’s purported secondary meaning evidence. Lastly, the Court found that Tacori could not establish a likelihood of confusion because there was no evidence that Scott Kay intended to adopt Tacori’s design and the expensive nature of the jewelry would require great care in purchasing decisions.

A copy of the order is available here. The case is Tacori Enterprises v. Scott Kay, Inc., CV11-1565 DSV (C.D. Cal. 2011).