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NOV
8
3 YEARS

EXCLUSIVE: Judge Clears Way For Release of Oscar Contender

It looks like Sony Pictures Classics won't have any problem releasing The Illusionist next month, despite a film by the same name having been released four years ago.

A federal judge in Los Angeles has denied a restraining order request by Illusionist Distribution, LLC, the rights-holder of the previous film, The Illusionist, which came out in 2006 and starred Ed Norton. The plaintiff in the case had sued Sony last month, arguing that the new film -- an Oscar contender, according to pundits -- infringed its trademark and would cause substantial consumer confusion.

On Thursday, Judge Dolly M. Gee denied a TRO with a hard-hitting ruling that may cause the dispute over The Illusionist to just disappear.

According to Judge Gee, the trademark enjoyed by Illusionist Distribution is "weak," describing a movie about an illusionist rather than its particular film. She agrees with Sony that a wide variety of consumer products employ the term "illusionist," including another 1983 film, 14 books published since 1952, and thousands of magicians who perform under that description.

The judge doesn't find much evidence to the contention by the plaintiff that its mark has acquired a secondary meaning. Illusionist Distribution had pointed to $18 million spent marketing and advertising its 2006 film, and $88 million of gross receipts at the box office, but the large sums of money were deemed to be inadequate proof of secondary meaning.

Judge Gee also doesn't find much similarity between the two same-named films. "Although both products are movies about illusionists, they are so different that there is little chance that consumer confusion will ensue," she writes.

The 2006 film was based on a 1989 short story "Eisenheim the Illusionist," written by Pulitzer prize-winning novelist Steven Millhauser, about a stage magician who falls in love with a duchess. It was a mainstream live-action period piece.

In contrast, Sony Classics' film is based on a screenplay written in the 1950s by famed French director Jacques Tati  and is said to contain virtually no dialogue or voiceovers. It shows Tati, a struggling illusionist, becoming older and weaker in the face of a new era of rock-n-roll and other forms of entertainment. The new movie, directed by Sylvain Chomet (The Triplets of Belleville), is animated.

Finally, Judge Gee says that Sony has a pretty strong First Amendment defense in its use of the title.