“Excuse me while I kiss this guy”
Michael Atkins, that is. Well, that’s what Hendrix always sounded to me to be saying in “Purple Haze” [corrected! — RDC]. Anyway, Mike continues his dogged coverage of all things Hendrix-trademarky, and here’s the latest of it:
Defendants’ use of HENDRIX and JIMI HENDRIX was fair use of plaintiffs’ trademarks to describe the images depicted on their products, the Western District preliminarily found on July 2. However, the court also found defendants’ domain names containing those marks, a guitar and “headshot/bust” logo, and Jimi Hendrix’s signature infringe plaintiffs’ trademarks and enjoined further use pending trial.
The signature was a trademark? It had secondary meaning? I think maybe John Hancock’s signature has secondary meaning, but I can’t think of too many other ones, though I am sure there are. But Hendrix’s? Here’s the reasoning, per Mike’s excerpt from the opinion:
During oral argument, counsel for defendants indicated that defendants are now confining their use of the signature to posters, fine art prints, and apparel. The Court interprets counsel’s remark as a concession that defendants’ use of Jimi Hendrix’s signature constitutes branding, and it is not exempted from infringement liability by either the nominative or the classic fair use doctrine.
“Branding” — “infringement” — “liabilty” — “fair use” — all very interesting concepts.
But they only apply to trademarks, Your Honor! How you got a trademark here?
Ah, well, what if the other side has actually registered a trademark in Jimi’s signature? Yep. Here are the two Jimi Hancox side by side — plaintiff’s registered one on the left, defendants’ on the right:
Ah! Yeah, kind of close, but that’s not really the point. Thus, wrote the court (at page 13),
[E]ven if the distinctions [between the two specimens that] defendants identify were nontrivial, the nature of plaintiffs’ mark, as connoting the signature of a particular, now deceased, person, does not leave much room for a different version of the same person’s signature to be associated with another company. The underlying assumption of a signature is that it remains somewhat constant over time and that it is unique to the individual, similar to a fingerprint.
Well, that is assuming a lot about what a signature’s “underlying assumption” is, for I imagine that there was no testimony by the signature. But a trademark registration at least provides a presumption; in this case, one of secondary meaning. And, given the above, that gets you a presumption of a LIKELIHOOD OF CONFUSION. As the court describes it, this flamboyant scribble is no different from any other graphical trademark and is entitled to the same level of protection.
It was presumptuous of me ever to think the Western District of Washington ever thought otherwise.