The Volokh Conspiracy

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Free Speech

Evil, God Helmet, and Trademark Law


From Murphy v. King Size Productions, decided Mar. 17 by Judge Michael Fitzgerald (C.D. Cal.), but just posted on Westlaw:

Defendants produce a fictional television show named "Evil" that airs on a streaming platform called Paramount+…. The [June 20, 2021] Episode revolves around a device called the "God Helmet." The characters who use the device see demons, relive traumatic experiences, and experience a loss of spirituality.

At the beginning of the Episode, a character referenced the device by saying, "oh right, the God Helmet," to which another character responded, "actually that's trademarked so we've been asked not to call it that." While the show itself is fictional, its reference to the God Helmet trademark was not.

Plaintiff Todd Murphy owns the God Helmet trademark under U.S. Registration Number 6368592. Plaintiff has published multiple research papers and a book on the God Helmet, and he sells his own version of the device through his website.

Plaintiff's God Helmet is a device that subtly stimulates the temporal lobes with magnetic signals to create altered states of mind, simulating a religious experience for its users. In the Episode, Plaintiff claims the God Helmet was portrayed as a torture device, misleading viewers as to the real purpose of the product….

The court rejected Murphy's trademark infringement claim:

"In general, claims of trademark infringement under the Lanham Act are governed by a likelihood-of-confusion test." When the alleged infringement occurs within an expressive work, however, the Ninth Circuit applies the Rogers v. Grimaldi test to determine if the Lanham Act applies. [Under the Rogers test, t]he Court treats expressive works differently because (1) they implicate the First Amendment right of free speech, which must be balanced against the public interest of avoiding customer confusion; and (2) consumers are less likely to mistake the use of someone else's mark in an expressive work for a sign of association, authorship, or endorsement.

"Under the Rogers test, the title of an expressive work does not violate the Lanham Act unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work." …

[The court agrees with Defendants, who] claim that both prongs under Rogers are easily met, and therefore, the Lanham Act does not apply. First, the God Helmet is of artistic relevance to the Episode because the Complaint specifically concedes that the God Helmet is the "main focus" of the Episode. Second, the Episode's depiction of the God Helmet does not explicitly mislead viewers as to the source of the work because there are no overt clams of endorsement and the Episode makes clear that the fictional device is not the same as the "trademarked" God Helmet….

The court also rejected Murphy's trade libel claim:

"Trade libel is generally defined as 'an intentional disparagement of the quality of property, which results in pecuniary damage to plaintiff.'" … [The court agrees with Defendants, who] claim that Plaintiff fails to meet the "of and concerning" [element of trade libel,] because, in the context of a fictional television show, no reasonable viewer would understand that the device from the Episode was in fact the device that Plaintiff offers for sale….

Reminds me of Fortres Grand Corp. v. Warner Bros. Entertainment Inc., Catwoman, and Clean Slate. Congratulations to Kelli Sager, Dan Laidman, and Sarah Burns of Davis Wright Tremaine LLP on their victory.