Twitter Turns Acidic to Trademark/Right of Publicity Claims
Twitter, in the legal
world, might prove to be the equivalent of sulphuric acid. In NBA-Player Gilbert
Arenas' recent lawsuit against his ex-girlfriend (Laura Govan) and Shed Media's
reality show, Basketball
Wives: Los Angeles (BWLA), Arenas' Twitter account became highly caustic to his
trademark and right of publicity claims.
Reality-TV: Truth or "No" Consequences
In Arenas v. Shed Media US Inc., 2011 U.S.
Dist. LEXIS 101915 (C.D. Cal. Aug. 22, 2011) [enhanced version available to lexis.com subscribers], Arenas sued Govan and Shed Media, seeking injunctive
relief based on claims for misappropriation of likeness/right of publicity and
trademark infringement. Shed Media produces Basketball
Wives: Los Angeles, a reality-TV show in which Govan appears.
Arenas, who asserted
ownership in the marks Gilbert J. Arenas Jr., Gilbert Arenas, and Gil Arenas, sought
to enjoin defendants from: (1) using his alleged trademarks; (2) using
"Basketball Wives" or any other term that would suggest affiliation
with basketball players; and (3) using any other means to suggest affiliation
with basketball players. In a sometimes sarcastic opinion, the Central District
of California denied Arenas' injunctive relief and granted Shed Media's anti-SLAPP
motion. On Tuesday, Arenas filed an appeal in the Ninth Circuit (11-56622).
In addressing the
right of publicity claim, the court confined its analysis to the claim's first
two elements: (1) the defendants' use of Arenas' identity; and (2) the
appropriation of Arenas' name or likeness to the defendants' advantage. Though
Arenas was likely to prove these elements, Arenas' claim could not survive
defendants' First Amendment "transformative use" and "public
interest" defenses.
As for the trademark claims,
the court held that while Arenas' marks were strong, they were completely
dissimilar to Shed Media's title. As the court noted, "No one would confuse
Arenas with a basketball wife." The court also looked to nominative fair use in judging
the direct use of Arenas' name on Basketball
Wives. As the court stated:
... allowing Govan to talk about her relationship with
Arenas on BWLA and permitting Shed Media to advertise that its show will
feature such discussions in no way suggests that Arenas endorses the show. To
the contrary, common sense suggests that a celebrity may not agree with his
ex-girlfriend's opinion of him.
Twitter Gives Life to the Old Adage, Loose Lips Sink Ships.
In his attempt to
diminish the public interest defense, Arenas suggested that any discussion of
his family life was not sufficiently related to his celebrity to render Basketball Wives' use of his identity a
matter of public concern. However, the court pointed to Arenas' Twitter account
in brushing his suggestion aside:
This contention is belied by the tens of thousands of
Twitter users who follow Arenas as he tweets about a variety of mundane
occurrences. (See, e.g., Alter Decl., Ex. O at 118 ("dont u hate waking up
doing the same thing..wash face..brush teeth..pee..take shower(well sum of
us)...put on clothes...eat...etc").) "Public interest attaches to
people who by their accomplishments or mode of living create a bona fide
attention to their activities." Hilton
[v. Hallmark Cards], 599 F.3d at 912 [enhanced version / unenhanced version available from lexisONE Free Case Law] (quoting Dora v. Frontline Video, Inc., 15 Cal. App. 4th 536, 542, 18 Cal.
Rptr. 2d 790 (1993) [enhanced version]).
The Twitter
damage didn't end there. Arenas also contended that without injunctive relief,
he would suffer irreparable harm to his reputation. In particular, he described
the Basketball Wives franchise as
"one that prides itself on its coarse brand of drama," featuring
"cat fights" and "infidelity issues." Arenas argued that defendants'
use of his identity to associate him with "such a disreputable show" would
lessen his reputation.
Here, again, the
court threw the Twitter book at Arenas:
... Arenas has publicized on Twitter his views of
women and other groups-opinions that would be characterized by many, if not
most, people as crude and offensive.
Moreover, Arenas has already associated himself with
the show by tweeting directly or indirectly about Govan's appearance on it. In
these tweets, Arenas expresses his opinion that he "[doesn't] care what
[Govan] does" because "if she gets a job [he pays] less money to
her." According to Arenas, most basketball players do not know that (1) "they"
(presumably ex-wives and ex-girlfriends) cannot lie about basketball players on
television because the players can sue the show; and (2) the basketball players
pay less money if "they" have a job. In addition, Arenas opines that
he "care[s] more about [watching people] plank [i.e., lie prone] th[a]n my
ex on tv." Arenas' own tweets calling attention to Govan's upcoming
appearance on BWLA undermine his claim that he will be injured by an
association with the show.
(citations omitted)
....
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