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Intellectual Property

Twitter Eats Holes in NBA-Player Gilbert Arenas’ Trademark/Publicity Lawsuit against Reality-TV Show, Basketball Wives

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 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").) "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.

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