Is there anyone that does not remember the dance from the movie Dirty Dancing where Patrick Swayze picks up Jennifer Gary? Now, picture a man and pig in the same images. Och. Not pretty.
Ameritrade did just that. As a commercial for its products it did a rendition of the Dirty Dancing scene using a pig and a man and they took the line from the movie ‘Nobody puts a Baby in a Corner,’ and changed it to: ‘Nobody puts your 401K in the Corner.’ The makers of Dirty Dancing, Loins Gate Entertainment, did not care for the image either. They sued TD Ameritrade claiming, among other things, False Association and Unfair Competition, Statutory and Common Law Unfair Competition, Trademark Infringement, and Trademark Dilution. I especially like the False Association. A pig and man dancing is truly false association.
The court agreed. The court held that there could be a false association and unfair competition claims in the case. This claim was allow to proceed.
However, the court said: No, it is not trademark infringement and dilution. Remember, trademark protection is all about protecting consumers from confusion, confusion about the maker of the product. In this case, there is no confusion that makers of Dirty Dancing provide 401K services or endorse TD Ameritrade products and services. Hence, no trademark infringement. Further, ‘Nobody puts a Baby in a Corner,’ and changed it to: ‘Nobody puts your 401K in the Corner’ are too dissimilar to warrant a trademark dilution claim.
This is a good little ditty of a case to remind us about what trademark is designed to protect and what it is not designed to protect.
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