There will only be one film featuring “Hobbits” this holiday season. A California judge recently granted Warner Brothers a temporary preliminary injunction to halt the release of Age of the Hobbits, low-budget takeoff of its much-anticipated The Hobbit: An Unexpected Journey.
The trademark infringement lawsuit highlights Hollywood’s growing problem with “mockbusters,” which are cheaper parodies of major films that often have titles very similar to major releases. In this case, the court agreed that Age of the Hobbits presented a likelihood of confusion among consumers who wish to see the film based on J.R.R. Tolkien’s novel.
The defendant, The Global Asylum, Inc., was scheduled to release its film three days before the release of The Hobbit: An Unexpected Journey. The Global Asylum movie is about a recently discovered species of pre-historic humans that lived in Indonesia, which are called “hobbits.” While the story lines may differ, Warner Brothers’ lawsuit alleges that Global Asylum infringed its trademarks with regard to the title, design and promotional materials. Among other marks related to the film, the studio holds a registration of the word “Hobbit” in “printed matter, namely posters, art prints, postcards.”
California federal Judge Philip Gutierrez agreed, granting Warner Brothers’ request to block the film’s release. Even though the use of the term “Hobbit” in a movie title is not registered, the court still found that the mark is distinctive and has developed a secondary meaning in the marketplace. The court placed significant weight on survey results showing that nearly 50 percent of respondents associated the term “Hobbit” with the trademark holder, finding it was “persuasive evidence that the Hobbit Marks have acquired secondary meaning.”
With regard to the likelihood of confusion, the court acknowledged that Warner Brothers “cannot claim exclusive rights to fantastical images of swords, mythical creatures, and the like….” However, the court concluded that when viewing the imagery in the posters in connection with the use of the term ‘Hobbit’ in the title “one is immediately struck by the similarity” between the two images.
“The majority of factors weigh in favor of a finding of likelihood of confusion, and no factor weighs against such a finding,” he concluded. “Moreover, the finding is particularly strong on the three factors that courts have found to be the most important, especially in the context of the Internet: similarity of the marks, relatedness of the goods and use of similar marketing channels.”
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