Not domain related, but a fun TM discussion

[DNQuest.com]

http://www.sportsbybrooks.com/madden-barkley-suing-over-caliendo-dish-net-ad-16663

Madden, Barkley Suing Over Caliendo Dish Net Ad

We’ve known for some time that John Madden despises Frank Caliendo’s ape-job of him. We also knew that Charles Barkley wasn’t too happy with Caliendo’s impersonation of him, which started on the TNT set earlier this NBA season.

CABLEFAX DAILY has a report today that cements the idea that both men disdain Caliendo’s parodies, as “Madden and Barkley reps ‘have threatened imminent legal action’” over Dish Network commercials featuring Caliendo doing impressions of the well-fatted duo.

Dish Network though isn’t backing down (obviously, Frank TV fans - who isn’t?).

In February, the satellite TV company asked the U.S. District Court in Colorado to “declare that its ad campaign featuring parodies” of Madden and Barkley by Caliendo “does not violate trademark or common law rights.”

Dish also pleaded that the ads “do not create any likelihood of confusion, or suggest or imply that [Madden] or [Barkley] sponsor or promote Dish Network.”

We can’t really understand Madden and Barkley being upset over Caliendo goofing on them. But we do think they have a case here. The intent is to use their likenesses (parody or not) as a vehicle to sell Dish Network subscriptions. And obviously, neither was paid for their *appearances* in the spots.

We’re guessing the Dish Net guys know now that the spots were a bad move, but they likely paid Caliendo an outrageous sum to perform in the ads, not to mention production costs. Thus, they are putting up a modicum of resistance hoping Madden and Barkley will go away. But knowing how much those two dislike Caliendo’s act, we doubt they will any time soon. And goodness knows they’re well-funded.

As an aside, Dish Network has seeded numerous versions of the commercial on YouTube. Smart.

I actually side with Madden and Barkley on this one. Parody for entertainment is one thing, but parody to sell products. I will admit there is a fine line here.

 

[flamewalker]

Yeah... this will be an interesting one... I agree parody for sales and parody for entertainment are two different things, and the former can and should have consequences...maybe... Any ways, if it goes to court, it will be a good precedent setting case to help determine just how far you can go with parodies.

 

[tinner666]

Interesting. Has anybody ever seen the commercials? I know I haven't. If nobody watches, it shouldn't be an issue. Or would it.

 

[flamewalker]

I see them all the time... and its not about how many people view it that makes it right or wrong...

 

[liquidcherry]

......Parody for entertainment is one thing, but parody to sell products. I will admit there is a fine line here.

Hi there,

What is with all the Coca Cola and Pepsi Commercials?

(e.g the delivery guy delivers into the store, in the fridge next to the competitors product and at the end he opens the fridge and gets the competitors soda)

Cheers,

Frank

 

[DNQuest.com]

Comparision ads are perfectly legal.

 

[liquidcherry]

Hi,

But in my POV it is a parody...and it is to sell more soda

Cheers,

Frank

 

[Devil_Dog]

Caliendo is hilarious.

If I were Madden or Barkley, I wouldn't be too upset, I wish someone did a parody on me.
I'd just ask for a cut of all profits drawn in by the commercials.

 

[flamewalker]

After thinking about it some more, I think the line is crossed when they are using a parody to sell a product or conduct/attract business. When they do them on the likes of SNL or other such venues its one thing... they are making money yes but they aren't trying to sell a product... whereas Dish is actually trying to use their personas to sell the product, which Madden may actually win on that point. Only time will tell what the courts think.

 

[Ronald Regging]

They are trying to sell a product, thats true, but it's not like they are using the parody to sell sportswear or athletic shoes... The product is completely unrelated to the personas. Also, I don't think there is any possibility of confusion, as it's obviously a parody...

It is an interesting case though. I'm not sure how it will turn out!

 

[DNQuest.com]

Caliendo is hilarious.

While I will admit that his impressions are pretty good, they are not funny. I don't think I have ever laughed at anytime during his skits.

I'd just ask for a cut of all profits drawn in by the commercials.

And that is why they are upset

 

[flamewalker]

They are trying to sell a product, thats true, but it's not like they are using the parody to sell sportswear or athletic shoes... The product is completely unrelated to the personas. Also, I don't think there is any possibility of confusion, as it's obviously a parody...

It is an interesting case though. I'm not sure how it will turn out!

So... if they are selling clothing its not ok, but selling TV is ok? They are attempting to make a capital gain on their personas both ways... I don't see the different in selling one product or another myself. My point is they are selling products, whether they directly relate to the people or not, I would imagine a sane court wouldn't put much weight on.

 

[AdoptableDomains]

After thinking about it some more, I think the line is crossed when they are using a parody to sell a product or conduct/attract business. When they do them on the likes of SNL or other such venues its one thing... they are making money yes but they aren't trying to sell a product... whereas Dish is actually trying to use their personas to sell the product, which Madden may actually win on that point. Only time will tell what the courts think.

A Parody is a parody if its obviously not the real person or obiously exaggerated. I think it's obvious to the average person that the person in the commercial isn't the real celebrity. If they think it is, then they probably don't know who the celebrity is to be confused in the first place. If it were used in radio, maybe there could be true confusion, but I don't think so on TV where the likeness isn't all that great visually. If parody isn't allowed for commercial purposes, what's next? Almost all impressionists are PAID performers. They are selling tickets, t-shirts, albums, videos, etc. If not selling tickets directly, places like Comedy Central are selling ads to watch them, which is commercial use.

 

[DebX420]

Parodies are in no form illegal - unless the person has copyrighted both their name and their look, there's nothing that can be done. That's why shows like MadTV and SNL are still up and going.

 

[labrocca]

A Parody is a parody if its obviously not the real person or obiously exaggerated.

imho it's not really parody since it's impersonation..they are two different things

He is certainly using the likeness of Barkley and Madden to advertise. I would sue his arse off. Yeah..funny is subjective but I agree...what's really funny about his excellent impersonations?

 

[RJ]

Barkley shoots... and misses.

Here's the Barkley DishTV spot:
http://www.youtube.com/watch?v=f2HWqM_gWEo

I mean come on... would any knucklehead watch this and get the impression that Charles Barkley endorses Dish Network? I don't think so.

 

[flamewalker]

Selling access to a showing of a parody or products that include the parody is still different than promoting a commercial product with it. I can see there being a very clear line between the two, and I think the courts will have to make that distinction, or dismiss the case. I'm sure there are other factors involved, but if you don't distinguish one type of commercial activity from another, then this case is moot imho.

-RJ- I don't think the issue is really confusion here. Its (imo) more that they are using their likenesses to sell their product, than making people think they endorse Dish. (As you said, no one in their right mind would think that they endorse DTV after viewing the commercials)

 

[CyberLaw.pro]

This isn't an intellectual property issue like trademark or copyright, by the way.

The issue here is what is known as "Appropriation" which is the unauthorized use of a person's name or likeness to obtain some type of benefit. It's an interesting case, certainly, but I think Barkley and Madden have a decent shot of getting their way here.