UFO Magazine, Inc. v. Showtime Network, Inc. involved a plaintiff’s second attempt to convince the District of Wyoming to hold Showtime liable for infringing the trademark UFO. The work in question was UFO, Showtime’s documentary-style television series by JJ Abrams.
UFO Magazine has been publishing since 1998. One of the latest ideas the magazine was considering was to produce a movie. The plaintiff said the television series by Showtime infringes on that trademark registration.
First, the court took judicial notice that the acronym UFO stands for an unidentified flying object, having joined the English language in the early 1950s. The court further indicated that the UFO series produced by Showtime used a documentary format to provide interviews, video footage, and still images regarding various historical, cultural, and political aspects of the UFO topic.
The court had previously dismissed the first complaint of infringement, and here the plaintiff was filing an amended complaint, only to be subject to another motion to dismiss. In this second time around this block, the court’s logic stayed stationary: the title UFO has artistic relevance to the underlying work, as per Rogers v. Grimaldi. In that decision, the Second Circuit said the First Amendment limited the Lanham Act’s application in any action that challenges the title of an expressive work. Rogers expressly said that motion pictures and television shows, including documentaries, are among the expressive works protected by the First Amendment.
One of UFO Magazine’s assertions was that, because Showtime publicly advertised its show, it demonstrated a non-artistic financial motive. The court disposed of this by saying financial motives do not render expression non-artistic. Even if the struggling artist motif suggests that artists don’t make money, their work is no less artistic if they do.
The real deficiency in the plaintiff’s amended complaint was that it did not demonstrate a movie or television series that actually needed protection. The most they could offer as evidence was a notice with a phone number that people could call if they were interested in producing a film for or through UFO Magazine. That’s not exactly developing a movie, but perhaps showing some level of interest above that of a casual observer.
Once again, the decision on this amended complaint came down to Rogers. Showtime certainly did not mislead as to the source or content of the work, unlike the previously discussed virtual Birkin Bag case (where the defendant’s comments to the public revealed an intent to cause confusion, leading to actual confusion). The plaintiff threw in some kitchen sink claims as well, such as contending that, because the defendant knew about the plaintiff’s trademark, they were — “by definition” — engaging in conduct that is not protected by the First Amendment. That was just not logical: simply knowing about the mark did not demonstrate an intent to capitalize on UFO Magazine’s alleged popularity.
It was notable that, at one section in the amended complaint, the plaintiff copied the language that the court had used to describe Showtime’s UFO series — and used it to describe itself. It’s not likely to be persuasive if you copy the judge’s own language instead of thinking up something new.
In conclusion, the court denied, with prejudice, the motion to amend UFO Magazine’s complaint, and dismissed the case.
It seems to me that UFO Magazine took a risk by having a very thin trademark that is in common usage. It’s quite a stretch to imagine a world where no one else would be able to make an entertainment product with those three letters in it. It’s not surprising that the court enforced Showtime’s First Amendment rights.
