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The Walking Dead comic book creator Robert Kirkman currently finds himself in court pursuing individuals planning a New Jersey “Walking Dead” restaurant. For those who are blood-thirsty — not in the trademark sense — the defendants appear to have health food, specifically of the Greek variety, in mind. Kirkman contends this is an infringement of his famous mark.
But Philip Theodorou, Steven Theodorou, Anna Theodorou and Mohamed Elkady are not rolling over.
In response to a lawsuit and summary judgment motion, the four are arguing that Kirkman and, by extension, AMC, which broadcasts a television adaptation of the zombie series, are limited in their rights. The defendants’ court papers mention that Kirkman once was going to call his comic “Night of the Living Dead” after the 1968 George Romero film before picking “The Walking Dead.”
According to defendants’ brief, “[Kirkman] now seeks to intimidate and stop defendants from using the instant mark by initiating suit, alleging the defendants were profiting from a ‘famous’ name, yet the name was made famous by well-thought of authors writing about zombies, the walking dead, and the like for almost a century. Plaintiff never took into consideration the fact that what happened to Mr. Romero, could very easily happen to him.”
Yes, the “walking dead” isn’t new. It has been used to describe those afflicted with drug addition in the early 1960s, for instance, and arguing for a “crowded field of marks,” the defendants point to the titles of songs, books and other works, including the 1936 film The Walking Dead, starring Boris Karloff.
In their brief (read here), the defendants say that what Kirkman is taking ownership over “has been in common usage amongst horror film followers, fans, and others since the early 1900s, if not earlier,” and further that “Walking Dead” is descriptive, not distinctive enough, and lacks secondary meaning. Kirkman is accused of engaging in trademark misuse and misrepresentation by suggesting otherwise.
On Tuesday, Kirkman responded in a New Jersey federal court by lashing out at the list of other “Walking Dead” works as “inadmissible hearsay,” and adding that “none of the third-party uses … are using The Walking Dead as a trademark.”
Kirkman says he is, and has got four trademark registrations that afford the presumption of validity. He also points to his use in the market — not just a top-related cable series, but also the licensing of figurines, board games, tote bags, beer, towels, makeup kits and beer koozies — and takes issue with the contention that his “Walking Dead” mark is invalid.
“Kirkman’s The Walking Dead Mark is not descriptive,” his brief (here) states. “The Walking Dead Mark is suggestive, as it requires consumer imagination, thought, or perception to determine that it refers to zombies.”
His attorneys add, “The Walking Dead Mark has acquired secondary meaning. Defendants do not dispute that AMC and Kirkman have substantially advertised and promoted the mark and, in fact, that the USPTO has held the mark to be ‘famous.'”
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