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Nobody Puts Baby in the Corner

According to a lawsuit filed by Lionsgate Entertainment, at least fifteen companies are selling T-shirts emblazoned with that famous phrase from the movie Dirty Dancing. The Hollywood Reporter, Esq. reports that Lionsgate is alleging trademark infringement under the Lanham Act, unfair competition under California’s Business & Professions Code 17200, common law unfair competition and copyright infringement.

Not surprisingly, I was not able to find a federal trademark for “Nobody Puts Baby in the Corner” registered to anyone. While the absence of a federal trademark registration does not mean that Lionsgate cannot sue under the Lanham Act, it makes one wonder why Lionsgate never federally registered such a valuable trademark.

Perhaps we can find the answer in the United States Patent and Trademark Office (USPTO) Trademark Manual of Examining Procedure (TMEP):

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).

Unfortunately for Lionsgate, copyright does not protect names, titles, slogans, or short phrases either.

Notwithstanding the foregoing, Lionsgate might have a shot if they can show consumers associate T-shirts bearing the phrase “Nobody puts baby in the corner” as indicating merchandise supplied by Lionsgate, or if Lionsgate can show the phrase is a sufficiently famous trademark that use by third parties on goods like T-shirts dilutes their trademark. Methinks, however, that these claims seem tenuous, at best. I would love to see how this one plays out, but I see it ending with a settled whimper, rather than a judicial bang.

In this case, it appears Lionsgate may be relying more heavily on its prima donna persona to win this pas de deux than on any true legal tango. If Liongate’s tiny dance partner can survive long enough to chassez, Lionsgate could be left looking like it has two left feet. (I apologize profusely for channelling Gene Shalit, but I have very little control over these things).

If Lionsgate takes this all the way to a jury, another line from that movie may just spring to mind. “You were right Johnny, you can’t win no matter what you do!”

Brett Trout

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