Law School Case Brief
Dall. Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd. - 604 F.2d 200 (2d Cir. 1979)
In order to be confused, a consumer need not believe that the owner of the mark actually produced the item and placed it on the market. The public's belief that the mark's owner sponsored or otherwise approved the use of the trademark satisfies the confusion requirement.
Plaintiff in this trademark infringement action is Dallas Cowboys Cheerleaders, Inc., a wholly owned subsidiary of the Dallas Cowboys Football Club, Inc. Plaintiff employs thirty-six women who perform dance and cheerleading routines at Dallas Cowboys football games. The cheerleaders have appeared frequently on television programs and make commercial appearances at such public events as sporting goods shows and shopping center openings. In addition, plaintiff licenses others to manufacture and distribute posters, calendars, T-shirts, and the like depicting Dallas Cowboys Cheerleaders in their uniforms. These products have enjoyed nationwide commercial success, due largely to the national exposure the Dallas Cowboys Cheerleaders have received through the news and entertainment media. Moreover, plaintiff has expended large amounts of money to acquaint the public with its uniformed cheerleaders and earns substantial revenue from their commercial appearances. Pussycat Cinema, Ltd., is a New York corporation which owns a movie theatre in New York City; Zaffarano is the corporation's sole stockholder. In November 1978 the Pussycat Cinema began to show "Debbie Does Dallas," a gross and revolting sex film whose plot, to the extent that there is one, involves a cheerleader at a fictional high school, Debbie, who has been selected to become a "Texas Cowgirl." In order to [*203] raise enough money to send Debbie, and eventually the entire squad, to Dallas, the cheerleaders perform sexual services for a fee. The movie consists largely of a series of scenes graphically depicting the sexual escapades of the "actors". Plaintiff brought this action alleging trademark infringement under section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)), unfair competition, and dilution of trademark in violation of section 368-d of the New York General Business Law.
Did Pussycat Cinema, Ltd. infringed Dallas Cowboys Cheerleaders, Inc. trademark?
The court affirmed the order, holding that appellants violated appellee's trademark and an injunction was proper. The depiction of the uniform in a motion picture violated that trademark because the uniform in the movie closely resembled appellee's uniform and the public was likely to be confused within the meaning of § 43(a) of the Lanham Act, 15 U.S.C.S. § 1125(a). Appellants' use of appellee's uniform did not qualify as parody or any other form of fair use, nor did any other doctrine protect appellants' infringement. Appellee established a probability of success at trial, and the confusion engendered by appellant's movie would have resulted in irreparable harm were appellants not enjoined from its distribution and exhibition.
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