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Lionsgate is back on its feet in a lawsuit contending that TD Ameritrade ripped off a famous Patrick Swayze line from the film Dirty Dancing for use in one of the brokerage giant’s advertisements.
The film studio claims to own common-law trademark rights in “Nobody Puts Baby in a Corner,” and objects to a TD Ameritrade commercial showing a cartoon image of a man holding a piggy bank above his head with the tagline, “Nobody puts your old 401(k) in the corner.”
In March, California federal judge Dean Pregerson threw out trademark infringement claims as being dressed-up ones preempted by copyright law. On a subsequent motion for reconsideration, Lionsgate focused on the way that the court had dismissed a claim for trademark dilution, meaning that TD Ameritrade had allegedly used a famous and distinctive mark in commerce and blurred or tarnished it.
At the time, Pregerson ruled that legal precedent required TD Ameritrade to be using an identical or near identical mark to Lionsgate’s, but the judge on Tuesday agreed with the plaintiff that such a rule is based on an outdated statute that was rendered obsolete by the Trademark Dilution Revision Act of 2006.
TD Ameritrade fell back on an argument that it was not using the trademark as a trademark. It tried to assert that it was merely using “Nobody puts your old 401(k) in the corner” to instead convey some sort of advertising or promotional information, but the brokerage company can’t keep the trademark dilution claim from being revived.
Pregerson responds that the relevant inquiry is whether TD Ameritrade uses the slogan to identify, distinguish or indicate the source of goods and services, and that Lionsgate has sufficiently pled that the defendant alluded to its film and caused confusion in the marketplace.
He writes, “Given that the parties do not dispute a slogan can be used as a trademark and given Lions Gate’s allegations that Defendants intended to use this phrase as part of branding campaign, the cause of action survives the Motion to Dismiss.”
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