It takes an Empire to hold Dr. Seuss back: court revisits TM claim and rejects liability for mashup

Dr. Seuss Enterprises, L.P. v. ComicMix LLC, No. 16-CV-2779-JLS, 2018 WL 2306733 (S.D. Cal. May 22, 2018)Twentieth Century Fox Television v. Empire Distribution, Inc., 875 F.3d 1192 (9th Cir. 2017), interprets and applies the test from Rogers v. Grimaldi, 875 F.2d. 994 (2d Cir. 1989), and convinced the district court to grant judgment on the pleadings to defendants here, who are trying to produce a Star Trek/Dr. Seuss mashup, Oh! The Places You’ll Boldly Go.  Previously, the district court relied on a footnote in Rogers indicating that the Second Circuit wouldn’t apply Rogers to confusingly similar titles.  But in Empire, the Ninth Circuit held that the Rogers test was applicable to titles generally, there being no point in changing the rule when the plaintiff asserted rights in a title and some danger in doing so, given that the First Amendment interests at stake come from the defendant’sexpressive use and that titles are inherently less likely to…

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