Lionsgate Wins Appellate Ruling in '50/50' Trademark Fight

Chris Helcermanas-Benge/Summit Entertainment


Screenwriter Will Reiser draws on his personal battle with a rare form of cancer in this comedy starring Joseph Gordon-Levitt, Seth Rogen and Anna Kendrick. 

An appeals court has upheld Lionsgate's victory against a music label that alleged the film 50/50, starring Joseph Gordon-Levitt and Seth Rogen, infringed its trademark hold on "Phifty-50."

The plaintiff was a Florida-based company called Eastland Music Group that said that it had been using the mark since 2000 in connection with entertainment services and products. The lawsuit further stated Eastland was in the business of putting out CDs and DVDs, and alleged that Lionsgate's plans to release the film on DVD threatened to harm the recognition and goodwill its marks have earned in the marketplace.

In July, a federal judge dismissed the lawsuit, ruling the Lionsgate's film title wasn't explicitly misleading. On Thursday, Seventh Circuit Judge Frank Easterbrook confirmed Lionsgate's victory for a different reason.

In his opinion (read here), the judge said that it isn't necessarily to look at constitutional defenses like whether Lionsgate had fair use to the title because it was artistically relevant to a movie about a character's 50 percent odds of beating cancer. He also waived away the plaintiff's procedural objection about evidence used that formed the lower court judge's opinion.

"This complaint fails at the threshold," writes Judge Easterbrook. "It does not allege that the use of '50/50' as a title has caused any confusion about the film's source -- and any such allegation would be too implausible to support costly litigation."

The judge adds, "At oral argument, plaintiffs' counsel conceded that not a single person has ever contacted Eastland or its web site to seek a copy of the film or complain about the film's contents or quality. Nor does the complaint allege that any potential customer has turned to Lionsgate or Summit in quest of the rap duo's products."

The judge makes use of Wikipedia.

"Wikipedia lists eight films with that title, opening in 1916, 1925, 1972, 1981, 1982, 1992, 2004, and 2011," he notes. "Six of these movies predate Eastland Music's use. The 1982 film is by and about a rock band.... If there is any prospect of intellectual property in the phrase 50/50, Eastland Music is a very junior user and in no position to complain about the 2011 film."

The opinion also serves to reemphasize the Supreme Court's 2003 ruling in Dastar Corp. v. Twentieth Century Fox Film Corp, which Judge Easterbrook interprets as not allowing trademark law to be used to obtain rights over the content of an artistic work in so far as amounting to an indefinite extension of a copyright. Trademarks have become more popular in Hollywood; but appeals courts are careful about allowing too much of a power grab.

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