February 22, 2013

7th Cir. Affirms Dismissal of 50/50 Case for Failure To Allege Confusion

Eastland Music Group v. Lionsgate Entertainment, No. 12-2928 (7th Cir. 2/21/2013) [Doc. 22].

Plaintiff was the proprietor of the rap duo Phifty-50, and registered “PHIFTY-50” as a trademark.  Plaintiff also claimed a trademark in “50/50” and contends that defendants infringed its rights by using “50/50” as the title of a motion picture that opened in 2011.  The district court dismissed the case under Rule 12(b)(6).  The 7th Circuit affirmed dismissal.

"This complaint fails at the threshold: 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."  Additionally, "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. Phifty-50 entered a crowded field, and its rights are correspondingly weak and narrow."  "Only a confusion about origin supports a trademark
claim, and “origin” for this purpose means the “producer of the tangible product sold in the marketplace.” 539 U.S. at 31. Eastland Music’s complaint does not (and could not plausibly) allege that consumers treat it as the producer or source of the film 50/50, or treat Lionsgate as the producer of the 2003 rap album."