Nobody Puts Lion's Gate in a Corner.

I am back from my Greekeyrael vacation (Greece+ Turkey + Israel), which was absolutely amazing. The measure of a good vacation is how difficult it is to return to normalcy, and I am having withdrawal symptoms already. The only blemish was having to scrounge from Internet cafe to Internet cafe just to check up on nytimes.com and my fantasy baseball teams. I now appreciate how amazingly reliant I am on the Internet. Well, absence makes the heart grow fonder, and so here I am ready to catch up on the interesting goings-on in the IP world.

First order of business is a case relating to the line "Nobody puts baby in a corner" from the Oscar-winning epic "Dirty Dancing." I take this case very seriously as this line has been a personal mantra for the past 10 years (don't worry, I am kidding).

The line has gained widespread notoriety, and was even included in AFI's list of top movie quotes. Lion's Gate supposeduly trademarked the line so it could sell merchandise based on it. After discovering that 15 companies sold merchandise using the line, Lion's Gate filed a trademark infringement lawsuit, Lion's Gate Entertainment v. The Urban Smalls Corp.

What is interesting in my mind about this case is that the line really isn't a trademark. It is not a mark used to designate source, but rather a phrase that has value in and of itself. The line cannot be copyrighted because it is too short, and so Lion's Gate decided to pursue trademark protection. Should Lion's Gate be able to trademark a movie line considering it is not the intention of trademark law to protect such an item?

The case certainly has some implications, as an entire industry exists based on using movie quotes for T-shirts, as evidenced by the following T-shirt immortalizing Steve Carrell's quote from the movie "Anchorman."

Why exactly is he wearing a headband with the Japanese flag on it?

There is an interesting discussion of this topic on the Blawg IT by Brett Trout. First, he says that he conducted a trademark search and could not find anything relating to cornering Baby. Second, he calls our attention to Section 1202.03 (f)(i) of the Trademark Manual of Examining Procedure-

1202.03(f)(i) Slogans or Words Used on the Goods Slogans or phrases used on items such as t-shirts andsweatshirts, jewelry, and ceramic plates have been refused registration as ornamentation that purchasers will perceive as conveying a message rather than indicating source of the goods. See Damn I'm Good Inc. v. Sakowitz, Inc., 514 F. Supp. 1357, 212 USPQ 684 (S.D.N.Y. 1981) ("DAMN I'M GOOD," inscribed in large letters on bracelets and used on hang tags affixed to the goods, found to be without any source-indicating significance); In re Pro-Line Corp., 28 USPQ2d 1141 (TTAB 1993) (BLACKER THE COLLEGE SWEETER THE KNOWLEDGE primarily ornamental slogan that is not likely to be perceived as source indicator); In re Dimitri's Inc., 9 USPQ2d 1666 (TTAB 1988) ("SUMO," as used in connection with stylized representations of sumo wrestlers on applicant's T-shirts andbaseball-style caps); In re Astro-Gods Inc., 223 USPQ 621, 624 (TTAB 1984) ("[T]he designation 'ASTRO GODS' and design is not likely to be perceived as anything other than part of the thematic whole of the ornamentation of applicant's shirts."); In re Original Red Plate Co., 223 USPQ 836 (TTAB 1984) ("YOU ARE SPECIAL TODAY" for ceramic plates found to be without any source-indicating significance).

However, each of these cases seemed to revolve around a phrase that the maker of the goods had no real claim of right over. Lion's Gate, on the other hand, owns the underlying work from which the quote was taken. It certainly has a more legitimate claim over the line than someone who peddles a T-shirt saying "Damn I'm Good."

This begs the question, when can we expect a lawsuit by Bobby McFerrin over the "Don't worry, be happy" T-shirts?