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from JTH Tax LLC d/b/a Liberty Tax v. AMC Networks, Inc.decided today by Judge Paul Jardeville (SDNY), dismisses plaintiff’s trademark infringement claim in the AMC case Better Call Saul:

[Season 6,] The second episode depicts a fictional tax preparation company called “Sweet Liberty Tax Services,” which is run by “a convicted felon, Craig Kittleman, and his wife, Betsy Kittleman.” Craig Kettleman was one of Saul Goodman’s clients in the first season of Better Call Saul Who was imprisoned after being convicted of embezzlement. The Kettlemans and Sweet Liberty defraud their clients “by stealing money from their tax refunds.” Kim Wexler — one of the show’s central characters and Saul’s wife — refers to the fictional tax business as “a rundown little mom and pop outfit.” Wexler blackmails the Kettlemans by threatening to reveal their crimes to the IRS.

In the amended complaint, the plaintiff alleges that the show’s Sweet Liberty Tax Services “is a clear imitation of the actual Liberty Tax website, but is twisted to paint Liberty Tax in a negative and disparaging light.”[,]”With just the word ‘sweet’ added.” According to Plaintiff, similarities between the fictional Sweet Liberty Tax Service and the real Liberty Tax Service include the use of an inflatable Statue of Liberty, and the use of checks bearing the Statue of Liberty logo. , a wall mural of the Statue of Liberty inside the tax preparation office, and use of a red, white, and blue motif on the exterior of the site….

No, the court says:

in Rogers v. Grimaldi (2d Cir. 1989), Second Circuit “Cre[ed] A new test for trademark infringement claims where the use of the trademark has both expressive and commercial components Rogers The court ordered that “in general [Lanham] The law should be interpreted to apply to works of art only when the public interest in avoiding consumer confusion outweighs the public interest in freedom of expression.”

The Court devised a two-pronged balancing test where there are competing interests under the First Amendment and the Lanham Act. When the title of the expressive work is at issue, the balance will not usually support the application of the title of the expressive work [Lanham] Act unless the title has no artistic connection to the underlying work whatsoever, or, if it has some artistic connection, unless the title is expressly misleading as to the source or content of the work.” Although the title of the allegedly infringing film has been disputed in Rogersthe case now “applies generally to Lanham Act claims against works of artistic expression.”

And under Rogers To the test, the court held that such use did not constitute infringement: it was in fact technically relevant to the offer, and was not overtly misleading as to the source or content of the offer. Seems perfectly true to me, and quite consistent with other cases (e.g. thiswhere the UCLA First Amendment Clinic filed an application Amicus curiae brief).

AMC is represented by Alison N. Douglis, Gianni B. Cerfodidio and Susan Joan Coleman.

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