In a recent blog post, we discussed The Hobbit producers’ trademark dispute with Global Asylum, the makers of the upcoming mockbuster movie “Age of the Hobbits”. The Hobbit producers claim that Asylum’s reference to hobbits in their movie title infringes rights under a trademark registration. Asylum countered claiming that the term hobbits refers to a recently discovered human sub-species and as such, they are entitled to use the term under the legal doctrine of fair use. In an effort to bolster their infringement position, The Hobbit producers have commissioned an interesting study aimed at showing a likelihood of confusion, which is one of the legal requirements to establish trademark infringement. (For more details on the story, see The Hollywood Reporter article by clicking here. story here: http://www.hollywoodreporter.com/thr-esq/hobbit-trademark-lawsuit-producers-enlist-394685).
“Likelihood of confusion” is part of the legal standard for determining whether trademark infringement has occurred. Thus, the Hobbit producers’ trademark attorneys will need to prove that Asylum’s use of the term hobbit in their movie title will create a likelihood of confusion. A likelihood of confusion occurs when the use of a trademark in connection with the sale of a good is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of the goods. In the case of hobbits, The Hobbit producers claim that Asylum’s use of hobbits causes consumers to be confused as to the source of Asylum’s movie, potentially giving the impression that their movie is somehow tied to Jackson’s group.
To show this, Nielsen National Research Group, the company retained to conduct the study, produced two DVD covers, a “test” and a “control”. The “test” cover contained DVD cover art and was titled “Age of the Hobbits”. The “control” cover used the same art, but was titled “Age of the Java Men”. They then showed the covers one at a time to a group of survey takers. When presented with the “test” cover and asked who made or distributed Age of the Hobbits, about 30 percent of respondents answered Warner Bros., New Line, MGM, Saul Zaentz Co., J.R.R. Tolkien, or Peter Jackson. When the group was presented with the “control” cover and asked who made or distributed Age of the Java Men that number dropped to 6.42 percent.
The survey results suggest that including the term “hobbits” significantly increases confusion over the source of the movie. Trademark attorneys for The Hobbit producers will probably use this to establish trademark infringement. Will this evidence be enough to persuade a judge to grant the temporary restraining order to prevent Asylum from using “hobbits” in their movie title? Or will the judge decide that “hobbits” is an actual scientific term open for all to use? Asylum’s trademark attorneys will want to produce their own counter survey or retain expert witnesses to discredit the Nielsen study. It will be interesting to see how Asylum responds and what the court ultimately decides.
Obtaining a trademark registration to strengthen your position is important. The case of the Hobbits demonstrates the complexities of trademark law and the importance of have a good trademark attorney.