Cameo Clips

Band Names/Trademarks

The owner of the trademark for the rock band Survivor failed to show dilution or likelihood of confusion regarding the defendants' distribution of music CDs and merchandise with the logo of the TV series “Survivor,” the U.S. Court of Appeals for the Seventh Circuit decided. Sullivan v. CBS Corp., 02-2058. The district court had granted summary judgment for the defendants. The appeals court first ruled that the plaintiff's mark was arbitrary, rather than descriptive. A descriptive mark indicates the ingredient or characteristic of a mark, thus the appeals court noted that term “Survivor” wasn't descriptive of a musical band. But that the mark was arbitrary and generally entitled to greater protection didn't help the plaintiff in this case. The fundamental issue remained whether the public associated the mark with the source of a particular product and on this the court stated that the plaintiff failed to present sufficient evidence. According to the court, “Survivor has not released a new album in the United States since 1993. Sullivan offered nothing about how much money he spends promoting the Band, or on advertising for the Band, nor did he provide any evidence of how much money the Band has earned. … There is simply no evidence that 'Survivor' the Band enjoys fame and recognition as the originator of any products other than rock albums and concert t-shirts.”

As for CBS's products, the court noted that “Survivor” always appears with a scene from the show and the show's logo. Furthermore, the parties CDs were placed in different sections of record stores: the plaintiff's in the rock section; the defendants' in the soundtracks section.

The corporate veil of a limited-liability film-distribution company could be pierced to make the company's principal personally liable for a judgment won by a film producer, the Court of Appeal of California, Second Appellate District, Division Two, decided in an unpublished opinion. Stinky Love Inc. v. Lacy, B163377. N. Lee Lacy, who founded Independent Artists, offered to distribute the film “Love Stinks,” which had been funded with $4 million of filmmaker Jeff Franklin's money. Independent presented itself to Franklin as a “premier $85 million per annum international film production company” with $30 million in seed money from Lacy. After Independent failed to pay a $2 million installment on a commitment to pay Stinky Love $4.3 million for the distribution rights, the production company moved to compel arbitration under the distribution agreement. Meanwhile, Lacy filed for personal bankruptcy. The arbitrator ruled that Independent had an obligation to make the $4.3 million payment. Stinky Love then successfully moved to have the bankruptcy court lift the automatic stay in Lacy's bankruptcy proceeding. The Los Angeles Superior Court ruled that Lacy was the alter ego of Independent Artists and should be included as a judgment debtor of the arbitration award. (The parties remained in a fight in bankruptcy court over whether Lacy could discharge the debt.)

Affirming, the court of appeal noted, “Lacy did not respect Independent's corporate separateness…. The evidence even showed that Independent directly paid off Lacy's personal creditors as a result of the entanglement of Lacy's finances with those of Independent. … From all of this, the trial court could reasonably deduce that Independent was a mere conduit for the Lacy family's activities.” The court also found that Independent Artists had been undercapitalized and that its reliance on income from “Love Stinks” to pay its bills “was an unlikely and unreasonable reliance on the success of a single movie. Independent's duty to pay Stinky the $4.35 million purchase price for Love Stinks was unconditional ' it was not contingent upon the film's success.”

Band Names/Trademarks

The owner of the trademark for the rock band Survivor failed to show dilution or likelihood of confusion regarding the defendants' distribution of music CDs and merchandise with the logo of the TV series “Survivor,” the U.S. Court of Appeals for the Seventh Circuit decided. Sullivan v. CBS Corp., 02-2058. The district court had granted summary judgment for the defendants. The appeals court first ruled that the plaintiff's mark was arbitrary, rather than descriptive. A descriptive mark indicates the ingredient or characteristic of a mark, thus the appeals court noted that term “Survivor” wasn't descriptive of a musical band. But that the mark was arbitrary and generally entitled to greater protection didn't help the plaintiff in this case. The fundamental issue remained whether the public associated the mark with the source of a particular product and on this the court stated that the plaintiff failed to present sufficient evidence. According to the court, “Survivor has not released a new album in the United States since 1993. Sullivan offered nothing about how much money he spends promoting the Band, or on advertising for the Band, nor did he provide any evidence of how much money the Band has earned. … There is simply no evidence that 'Survivor' the Band enjoys fame and recognition as the originator of any products other than rock albums and concert t-shirts.”

As for CBS's products, the court noted that “Survivor” always appears with a scene from the show and the show's logo. Furthermore, the parties CDs were placed in different sections of record stores: the plaintiff's in the rock section; the defendants' in the soundtracks section.

The corporate veil of a limited-liability film-distribution company could be pierced to make the company's principal personally liable for a judgment won by a film producer, the Court of Appeal of California, Second Appellate District, Division Two, decided in an unpublished opinion. Stinky Love Inc. v. Lacy, B163377. N. Lee Lacy, who founded Independent Artists, offered to distribute the film “Love Stinks,” which had been funded with $4 million of filmmaker Jeff Franklin's money. Independent presented itself to Franklin as a “premier $85 million per annum international film production company” with $30 million in seed money from Lacy. After Independent failed to pay a $2 million installment on a commitment to pay Stinky Love $4.3 million for the distribution rights, the production company moved to compel arbitration under the distribution agreement. Meanwhile, Lacy filed for personal bankruptcy. The arbitrator ruled that Independent had an obligation to make the $4.3 million payment. Stinky Love then successfully moved to have the bankruptcy court lift the automatic stay in Lacy's bankruptcy proceeding. The Los Angeles Superior Court ruled that Lacy was the alter ego of Independent Artists and should be included as a judgment debtor of the arbitration award. (The parties remained in a fight in bankruptcy court over whether Lacy could discharge the debt.)

Affirming, the court of appeal noted, “Lacy did not respect Independent's corporate separateness…. The evidence even showed that Independent directly paid off Lacy's personal creditors as a result of the entanglement of Lacy's finances with those of Independent. … From all of this, the trial court could reasonably deduce that Independent was a mere conduit for the Lacy family's activities.” The court also found that Independent Artists had been undercapitalized and that its reliance on income from “Love Stinks” to pay its bills “was an unlikely and unreasonable reliance on the success of a single movie. Independent's duty to pay Stinky the $4.35 million purchase price for Love Stinks was unconditional ' it was not contingent upon the film's success.”