Trademark Law: Cashing in on Hobbits – Fair Game or Foul Play?

trademark lawThe hugely successful movie franchise, The Lord of the Rings, picks up again when director Peter Jackson releases The Hobbit on December 14th, 2012.  The profitability of the movies and all things related to Middle Earth are not lost on others looking to ride the momentum created by the new release.  Global Asylum is a movie production company that specializes in “mockbusters”, low-budget movies that have similar titles and storylines to blockbuster movies and are released around the same time. This time around, Global Asylum intends to cash in on The Hobbit frenzy by releasing a film entitled Age of the Hobbits, three days before the release of the Jackson film (see story). So what’s the deal with these mockbusters? Is this fair game or foul play? Trademark law may be the deciding voice.

Peter Jackson and company are crying out foul play and they are using trademark law to support their claim. According to their recently filed lawsuit, the group claims:,
“The Asylum has been and is promoting and advertising its low-budget film using the confusingly similar and misleading title Age of the Hobbits, in an intentional and willful attempt
(i) to trade on the popularity and goodwill associated with the Tolkien novels, the extraordinarily successful Lord of The Rings film trilogy, and the famous HOBBIT mark,
(ii) to free-ride on the worldwide advertising campaign in connection with the forthcoming Hobbit films, and
(iii) to divert customers and potential customers away from the Hobbit films.”

No doubt, the similarity of the movies and the timing of the release seem to strongly suggest that Global Asylum is looking to make some quick cash off of The Hobbit brand. One might argue that there could be a likelihood of confusion in the marketplace about the source of Asylum’s movie. Consumers might wonder if the movie is somehow authorized by Jackson or even produced by Jackson. However, Global Asylum does have a somewhat plausible counter argument. They claim that their movie is about the recently discovered human sub-species identified in Indonesia in 2003 which garnered the nickname in the scientific community of “Hobbits”. If that is the case, how can Jackson’s group prevent all use of factual scientific terms? If the term “Hobbits” now refers to a type of human relatives living in Indonesia and not merely J.R.R. Tolkien’s fictional creatures, shouldn’t that term be open to the public to use rather than protected under trademark law?

It will be interesting to see how this plays out in court and whether the court rules the term “Hobbit” is protected under trademark law or fair use as a scientific term. While you may not be making a mockbuster, you may have other questions about trademark law.

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