Monday, July 2, 2012

Trademark Infringement of Brave?

Disney released yet another mega blockbuster new animated movie this weekend called “Brave”. To no one’s surprise, the movie scored the top box office spot and has already grossed over $80 million worldwide. Just a few days before the release of Disney’s “Brave,” a company called Phase 4 Films released a low-budget version called “Kiara the Brave.” “Kiara” wasn’t released in theaters, but distributed through iTunes, Amazon, and I even saw it offered on On-Demand service through my TV.

Both of the animated films feature a redheaded, adventurous heroine and use a similar plot. So what gives? Lately there has been a phenomena of low budget movies that appear to be very similar to the mega blockbuster movies. These movies of course open right around the same time as the mega blockbuster version. It’s unclear how much the makers of “Kiara” have profited from the movie, but considering the mega popularity of “Brave,” “Kiara” seems to have the potential to capitalize off of the similarities between the two movies.

Most likely, there isn’t much Disney can do about “Kiara” liberally using a similar plot as “Brave.” It is not enough that “Kiara” uses a similar story line as “Brave” because it must also be substantially similar in tone and pace to win a copyright infringement case. In some situations, a court will not determine that the other party’s movie infringed a copyright without evidence that the other party had access to the script.

With respect to trademark protection, titles of movies have very little to no protection alone typically. Disney has filed multiple trademark applications for the word “Brave” in connection with the movie and other goods, but the applications have not issued yet. Further, and surprisingly, we stumbled upon another trademark impediment that Disney is facing against the Atlanta Braves! Disney applied for the trademark rights over “Brave,” but the Atlanta Braves baseball team filed an Opposition proceeding to many of the pending trademark applications in relation to the use of the trademark for a number of different classes of goods/services. The Atlanta Braves already registered the trademark “Braves” prior to Disney’s first use date of “Brave,” which was in March 2010. The opposition to the registration states:

“Applicant’s BRAVE mark so resembles Opposer’s BRAVES Marks as to be likely, when used in connection with Applicant’s goods and services, to cause confusion, to cause mistake, and to deceive the trade and public, who are likely to believe that Applicant’s goods and services have their origin with Opposer and/or that such goods and services are approved, endorsed or sponsored by Opposer or associated in some way with Opposer. Opposer would thereby be injured by the granting to Applicant of certificates of registration for Applicant’s BRAVE mark.”

Disney’s trademark is still pending, but may not be approved if the Trademark Trial and Appeal Board determines that there is a likelihood of confusion between Disney’s use and the baseball team’s use of “Brave.”