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Video News (more headlines) 02-23-2013

Pryor Cashman Wins Trademark And Unfair Competition Case Involving Hit Movie "50/50"

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The U.S. Court of Appeals for the Seventh Circuit affirmed the dismissal of a trademark and unfair competition case brought under the federal Lanham Act against Summit Entertainment, Mandate Pictures and Lions Gate Entertainment in connection with the critically-acclaimed motion picture 50/50. The case, Eastland Music Group et al v. Lions Gate Entertainment et al, had previously been dismissed by the U.S. District Court for the Northern District of Illinois, in Chicago.

Plaintiffs Eastland Music Group, LLC, "the proprietor of the rap duo Phifty-50," claimed to have statutory and common law trademark rights in "Phifty-50" and "50-50" and alleged that the use of "50/50" for the film's title infringed those rights under the Lanham Act. The district court dismissed those claims, relying on the Second Circuit's first amendment analysis in the landmark Rogers v. Grimaldi case, which had rejected Ginger Rogers' claims against the Federico Fellini film Ginger & Fred. The lower court found that the title "50/50" had artistic relevance to the content of the film – which concerns a young man who has a 50/50 chance of surviving a rare form of spinal cancer – and that the title was not explicitly misleading as to the source or content of the film.

The Seventh Circuit, which is among the federal circuits that had not yet adopted the Rogers test, affirmed without deciding the applicability of the Rogers free speech analysis, noting that "courts should avoid unnecessary constitutional adjudication." Chief Judge Frank Easterbrook found that Eastland's complaint was legally insufficient because it could not plausibly allege that "the use of '50/50' as a title has caused any confusion about the film's source," and that dismissal was therefore required under post-Rogers Supreme Court precedents regarding the Lanham Act and the legal sufficiency of complaints.

Partner Tom J. Ferber, who had also successfully represented the defendants in the Rogers case, and associate Ross Bagley, both members of Pryor Cashman's Litigation, Intellectual Property and Entertainment and Media Groups, successfully represented the defendants.

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