Evil, the Helmet of God and the Trademark Law

Of Murphy vs. King Size Productionsdecided on March 17 by Judge Michael Fitzgerald (CD Cal.), but just posted on Westlaw:

The defendants produce a fictional television show named “Evil” which airs on a streaming platform called Paramount+…. The [June 20, 2021] The episode revolves around a device called “God’s Helmet”. Characters who use the device see demons, relive traumatic experiences, and experience a loss of spirituality.

At the start of the episode, one character referred to the device by saying “oh yes, God’s helmet”, to which another character replied, “actually it’s trademarked, so we were told asked not to call it that.” Although the show itself is fictional, its reference to the God Helmet brand was not.

Plaintiff Todd Murphy owns the trademark God Helmet under U.S. Registration Number 6368592. Plaintiff has published several research papers and a book on the God Helmet, and he sells his own version of the device through his website. .

The Seeker’s God Helmet is a device that subtly stimulates the temporal lobes with magnetic signals to create altered states of mind, simulating a religious experience for its users. In the episode, the claimant claims that the God Helmet was portrayed as a torture device, misleading viewers as to the true purpose of the product….

The court denied Murphy’s trademark infringement claim:

“Generally, trademark infringement claims under the Lanham Act are governed by a likelihood of confusion test.” However, where the alleged infringement occurs in the course of an expressive work, the Ninth Circuit applies the Rogers vs. Grimaldi test to determine if the Lanham Act applies. [Under the Rogers test, t]The Court treats expressive works differently because (1) they implicate the First Amendment right to freedom of expression, which must be balanced against the public interest of avoiding customer confusion; and (2) consumers are less likely to confuse the use of someone else’s mark in an expressive work with a sign of association, authorship, or endorsement.

“Under the roger test, the title of an expressive work does not violate Lanham Law unless the title has no artistic relevance to the underlying work, or, if it has some artistic relevance, unless the title does not explicitly mislead as to the source or content of the work. work.” …

[The court agrees with Defendants, who] claim that the two strands under roger are easily met and therefore the Lanham Act does not apply. First, the Helmet of God is of artistic relevance to the Episode because the Complaint specifically concedes that the Helmet of God is the “primary focus” of the Episode. Second, the episode’s depiction of the helmet of God does not explicitly mislead viewers as to the source of the artwork, as there are no overt claims of endorsement and the episode makes it clear that the fictional device is not the same as the “branded” god helmet….

The court also dismissed Murphy’s commercial libel claim:

“Commercial libel is generally defined as ‘an intentional disparagement of the quality of property, which results in pecuniary damage to the plaintiff. “”… [The court agrees with Defendants, who] allege that the plaintiff does not meet the “of and concerning” criteria [element of trade libel,] because, in the context of a fictional TV show, no reasonable viewer would understand that the device in the episode was in fact the device that the applicant is offering for sale….

Makes me think of Fortes Grand Corp. against Warner Bros. entertainment inc., Catwoman and Clean Slate. Congratulations to Kelli Sager, Dan Laidman and Sarah Burns of Davis Wright Tremaine LLP on their victory.

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