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A second lawsuit over TD Ameritrade’s Dirty Dancing ad spoof has been filed. This time, Lionsgate is attacking the brokerage giant for “adulterated taglines” and a cartoon “reenactment” of the famous “Dance Lift” performed by Patrick Swayze and Jennifer Grey in a television ad campaign that ran from October through April.
Lionsgate’s lawsuit asserting false association, unfair competition, trademark infringement and dilution follows TD Ameritrade’s own attempt last Friday to get declaratory relief that its advertisement was kosher.
In the ad, a cartoon image of a man holds a piggy bank above his head with the tagline, “Nobody puts your old 401(k) in the corner.” (See it below.)
Lionsgate objects this capitalizes on the famous line from the film, “Nobody puts Baby in a corner.”
The studio says it has owned common law trademark rights in the movie line since the film premiered in 1987 and owns pending federal applications to register the mark formally. The line in question is said to be the subject of merchandising licensing. Plus, Lionsgate says it “licenses scenes from Dirty Dancing, including the Dance Lift,” otherwise remembered as the move where Grey flies like an eagle into Swayze’s raised arms.
Lionsgate also says it has “future plans for additional exploitation of this valuable property,” but now contends with TD Ameritrade’s alleged attempts to “deceive customers into believing that the Advertising Campaign was a Lionsgate-licensed, authorized or sponsored work, when, in fact, it was not.”
It’s not just what appeared on television. The plaintiff is also upset with TD Ameritrade’s other promotional comments made on Facebook and Twitter such as “Take that baby and roll it over to an IRA.”
Now that two lawsuits have been filed — TD Ameritrade’s came in New York, Lionsgate’s is in California — the first task of the judges will be deciding who is leading this tango. It might not be obvious.
TD Ameritrade sued first, but according to Lionsgate’s complaint, it came after the parties traded letters and settlement offers from April through June.
“Defendants expressly agreed not to file a declaratory judgment action without first contacting Lionsgate,” says the lawsuit. “Lionsgate promised the same with respect to filing an infringement action. This agreement was confirmed in writing by the parties through a series of emails sent on June 8, 2015.”
Lionsgate says it presented its last counteroffer on June 18 (TD Ameritrade has hinted it was seven figures) with a June 25 deadline. TD America elected to rush to the court rather than respond in violation of the agreement, says the lawsuit.
Represented by Jill Pietrini at Sheppard, Mullin, Lionsgate is seeking all kinds of damages plus seeking the type of preliminary injunction that could give an early read on how this lawsuit might play out.
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