Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

How similar is too similar? Television producers need to be careful to ensure that they are not mimicking real-life businesses too closely to offer their fictitious shows some realism. According to , AMC Networks and Sony Pictures, the production companies behind Better Call Saul, are being sued for trademark and trade dress infringement by Liberty Tax. The tax company claims that the producers and film studios “decided not to be original at all” and “rip off” of its trademark which has been in use for over 25 years.

The episode in question (Season 6, Episode 2) portrays a business called “Sweet Liberty Tax Services,” shown below. The fictitious business is run by Betsy and Craig Kettleman, who embezzle money by taking advantage of their clients who do not understand the tax system. The real-life tax company "Liberty Tax" claims that the show copied its logo and style, including the Statue of Liberty, which is a frequent identifier of the company.

Photo retrieved from The Wrap

The is no stranger to trademark infringement issues.��Audiovisual professionals know to be especially careful whenever trademarks are displayed on screens. However, production teams can defend their works against claims of trademark infringement. Among these avenues are demonstrating that the trademarks are being used in an “indicative manner” or a “mere accessory,” instead of for identifying goods and services. Camerawork plays an important role in achieving that the trademarks blend into the scene’s overall ambience. For example, to mitigate trademark infringement risks, directors may take active measures to prevent fixed close-ups or give too much screen time to one particular trademark over another.

All that said, a trademark does not necessarily have to be displayed visually to trigger a trademark infringement lawsuit. After the release of “Black Mirror: Bandersnatch” in 2018, , a children’s book publisher known for their ‘game books’ titled Choose Your Own Adventure. As an interactive film, Bandersnatch viewers could take control and make decision for the protagonist, Stefan Butler, as he navigates a series of disturbing events. By adopting the unique narrative structure of its books and using the specific phrase “Choose Your Own Adventure Book,” Chooseco accused Netflix of willfully infringing its trademark and ultimately tarnishing the series’ child-friendly reputation. Netflix eventually settled with Chooseco in late 2020 after unsuccessfully arguing on grounds related to trademark law and fair use allowances.��

Moreover, in 2020, Netflix's movie "Enola Homes" was the by the estate of Sir Arthur Conan Doyle over “similarities to existing Sherlock Holmes material.” The estate argued that the film depicted a version of Holmes that was not yet in the public domain, illustrating how IP infringement issues can arise when films are based on works still under copyright protection.

Liberty Tax’s recent lawsuit shows that minor alterations to fictitious names may not be enough to bypass trademark infringement issues – not so “sweet” anymore for the “Better Call Saul” team.

The post “Better Call Saul” Episode Sparks “Sweet” Trademark Infringement Lawsuit appeared first on IPOsgoode.

Photo by Pineapple Supply Co. ()

Sally Yoon is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Given the power of Apple’s brand, it is no surprise that they actively challenge trademarks that resemble their own to protect the dilution of their trademark. But this raises some key questions: Should Apple have the right to challenge all trademarks relating to an apple? What about fruits that bear a resemblance to an apple? In its act of trademark enforcement, Apple seems to be casting the net as widely as possible. According to the , a research initiative seeking to hold large technology companies accountable, Apple filed 215 trademark oppositions, nearly two-thirds more than all the trademark oppositions of Microsoft, Amazon, Facebook and Google.

Apple’s numerous filings are targeting that are seemingly unrelated to the company’s brand, including but not limited to “an organization that supports families of children with autism, a school district in Appleton, Wisconsin, and an online test prep service for nursing students”.

The as “a trademark owner that uses its trademark rights to harass and intimidate another business beyond what the law might be reasonably interpreted to allow.” ��Apple has taken issue with individuals and businesses trademarking anything related to apples, and even other fruits. Those targeted include individuals and businesses providing services that Apple does not, such as . , Apple also filed an opposition to the trademark of Stephanie Carlisi’s stage name “Franki Pineapple”, as they were “both the names of fruits, and thus convey a similar commercial impression”.

Apple’s argument against these companies in mainly emphasizes Apple’s ��significant brand value – as a business grows, so do its efforts to prevent the brand’s dilution. Many smaller parties are unable to respond to opposition because of the costs involved; it can often seem like they have no choice at all. With no opposing voice loud enough to fight back, arguments emphasizing brand values only encourage large companies to continue to enforce their trademarks aggressively and boundlessly.

However, brands attached with the term “trademark bully” can face negative consequences and be reprimanded by the courts for filing “weak” cases. In 2016, Louis Vuitton’s inability to pass off ’s parodical products as a “joke” led to . , the district judge stated that “[i]n some cases … it is better to ‘accept the implied compliment in [a] parody’ and to smile or laugh than it is to sue”. ��For this reason, trademark enforcement can be seen as a double-edged sword.

Image from United States District Court for the Southern District of New 91��ɫ

In the media, world-famous brands are often , and infringers are sympathized with. Still, ��many companies are simply trying to protect their brand’s dilution. Clarifying the thresholds for depreciation of value and distinctiveness of trademarks would be beneficial to ensure that smaller businesses and individuals are not silenced by nets cast too widely and prevent companies from enforcing their trademarks over-aggressively and falling victim to the double-edged sword of trademark enforcement.

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The series takes place in Oklahoma and follows the life of zookeeper Joe Exotic, as well as other interesting characters, such as Joe’s competitor and fellow zookeeper , the leader of a cult-like polyamorous group that staffs his zoo. The series brings to light a plethora of legal issues, including . Interestingly, the series involved several like the , and and against Joe Exotic. This article will explore Carole Baskin’s trademark suit against Joe Exotic in particular.

In 2011, Carole Baskin’s Big Cat Rescue filed alleging that Exotic infringed her trademark rights on her BIG CAT RESCUE logo. The purpose of trademarks is to of goods and services of the trademark holder to distinguish those goods and services from others in the marketplace. In her complaint, Carole Baskin had to demonstrate that Exotic’s similar trademark with her trademark. To prove this claim, she showed that she had a registered mark, and that Joe’s use of “Big Cat Rescue Entertainment” infringed her exclusive trademark rights. states that any person who use in commerce any reproduction, counterfeit, copy or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution or advertising of any goods or services on or in connection with which such use is likely to cause confusion is liable for civil damages.

To determine trademark infringement and whether a exists, the respective marks are examined for their similarities and differences. Even if not identical, if the marks , then the marks may be deemed confusingly similar. In this case, “Big Cat Rescue Experience” to promote his zoo, as well as his show where he travelled with big cats and performed magic. Exotic only added the term “” to Baskin’s Big Cat Rescue to create his Big Cat Rescue Entertainment/Experience. Moreover, Exotic marketed the show by using an image that had a to Baskin’s logo for the Big Cat Rescue. Also, not only were Exotic’s services similar to those of Baskin’s (animal sanctuary/zoo), but Exotic’s use of the Florida phone number created an illusion that his business was as Baskin’s sanctuary. So, was likely to confuse consumers into thinking that his zoo had a connection or affiliation with Carole’s non-profit sanctuary.

The consumer confusion allowed Exotic to unlawfully benefit from the popularity of Baskin’s sanctuary by Consequently, and ordered Exotic to pay legal costs and damages to Carole’s Big Cat Rescue in the amount of $953,000. Recently, the , which was transferred to his mother in order to evade creditors, to be turned over to Baskin.

Written by Elif Babaoglu, who is a contributing IPilogue Editor and the Co-Director of Events of the Osgoode Privacy Law Society.

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