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Global Asylum, producer of Age of the Hobbits, hasn’t found any luck convincing an appellate court that it has fair use to “Hobbits,” which it says is a reference to a real-life human subspecies, Homo Floresiensis, discovered in 2003 in Indonesia.
Last year, a few weeks before Peter Jackson-directed The Hobbit: An Unexpected Journey was released in theaters, Warner Bros. took the mockbuster producer to court on trademark grounds. A federal judge entered a temporary restraining order and later, a preliminary injunction over use of the title after a determination that Warners had demonstrated a likelihood that it would suffer irreparable harm from confused consumers.
On Wednesday, reviewing an appeal, the 9th Circuit has affirmed the lower court’s rulings.
“The district court did not apply an erroneous legal standard in rejecting Asylum’s nominative fair use defense,” said a three-judge panel. “The district court properly recognized that a nominative fair use defense is not available because Asylum used the ‘Hobbit’ mark in the title Age of the Hobbits to refer to Asylum’s product and not the Studios’ product.”
The appeals court also rejected the contention that the issued injunction was overbroad. Asylum wanted a ruling that would allow some leeway in using the trademarks in a lawful manner.
“Asylum did not propose to the district court or this court specific language or suggestions regarding how the injunction should be modified to allow nominative use of the protected trademarks while prohibiting Asylum’s infringing uses,” writes the appeals judge. “Accordingly, the district court did not abuse its discretion in granting the preliminary injunction as requested by the Studios instead of tailoring it to authorize permissible nominative fair use of the protected marks.”
After the judge’s TRO last December, Asylum released the movie on home video under the title Clash of the Empires.
The result of the latest ruling ensures that this film won’t be renamed back in time for the next installment of Warners’ franchise, The Hobbit: The Desolation of Smaug, scheduled for a December release.
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