This has already garnered a fair amount of press, but it’s funny and interesting, and those are generally my two criteria for writing about something.
Here’s the scoop: luxury designer Louis Vuitton (forget about the fact that it’s owned by a larger holding company, I’m just referring to Vuitton in this post) sued Warner Bros. alleging that a handbag featured in the Warner-movie Hang Over Part II is a fake.
Specifically, in a scene played out in an airport waiting area, the character of Alan, played by Zach Galifianakis, warns another character (Stu), who’s about to drop his tush on the bag at issue: “Careful, that is.. that is a Louis Vuitton.”
According to the fine folks at Louis Vuitton, the bag at issue is a counterfeit, made by a company named Diophy. Vuitton and Diophy are no strangers to each other: Vuitton is currently suing Diophy with respect to its allegedly counterfeit bags; and Diophy . . . well Diophy appears to really like the design of Vuitton’s bags. There, no strangers.
With respect to the movie, however, Vuitton claims consumers are likely to be confused, and thus Vuitton will be/has been damaged, by Warners’ use of the bag in the film. The claims expressly asserted include trademark dilution, false designation of origin and unfair competition.
Streeetch! (Sorry, just stretching here. Ah, that feels better.)
So what does LV want? The scene cut from the film. Is that all? You want butter with that? And a box of damages? Your total will be . . . .
You may recall that Hangover Part II is the same file that was previously the issue of another IP claim: in that one, the studio was sued by a tattoo artist who claimed that mark on Ed Helms’ face infringed the tattoo the artist had etched into boxer, Mike Tyson. What is it about this film? In October, a writer also sued, claiming the flick infringed a script he had written. Well, that’s how you know a film is successful: the lawsuits start flowing in. Seems nobody sues over the films that are dogs (The pending John Carter release? We’ll see. See here for an article about that one: http://www.thedailybeast.com/articles/2012/02/21/john-carter-disney-s-quarter-billion-dollar-movie-fiasco.html )
Back to our story:
Warners – shockingly – disagrees with the position taken by les Medames et Messieurs chez Louis Vuitton. According to Warners’ attorneys, Warners’ use is de minimus, non-infringing and subject to a defense under the First Amendment. And if that’s not enough, the studio has March 14 to think of a few more reasons why a 12(b)(6) should be granted and the complaint dismissed.
Is it just me, or does this who spat seem just a little bit silly? Cut the scene? Really? Damages under trademark law for this? Yeah? What about when Bugs hopped along singing “I’m looking over a three-leaf clover . . .” Do you think Mort Dixon and Harry M. Woods (the gentlemen who wrote the song I’m Looking Over a Four Leaf Clover” in 1927) should have had a claim for infringement too?
Jonathan Pink is an intellectual property attorney resident in the Los Angeles and Irvine offices of Bryan Cave, LLP. He can be reached at firstname.lastname@example.org