Friday, August 17, 2007

Trade undress

SG Servs. Inc. v. God's Girls Inc., 2007 WL 2315437 (C.D.Cal.): Suicide Girls, the popular alterna-porn website, sued God's Girls, a competitor with a similar business model. (One advantage of working in IP is that it means that many fewer things are Not Safe For Work.) The court denied SG's motion for a preliminary injunction for infringement and dilution of the respective word marks, logos, and trade dresses.

Of note: the court held that, even assuming that SG uses the phrase "they're the girl next door" and GG uses "the other girl next door," the word "other" clearly distinguishes the two. Moreover, reacting to the MySpace-influenced design of the sites, the court stated, "in the four website pages that the Court examined, all the phrases and slogans are in small font and barely distinguishable amidst the pictures, message boards, marks, and advertisements that otherwise clutter these pages. It is inconceivable that a viewer would zero in on the phrases strewn about these pages and consider them to be definitive markers of their respective brands." This raises a question about generation and market gaps -- is the court's reaction that of a typical consumer of this particular product? (It may well be -- most consumers are likely to filter out as much of the things they don't care about as they can, and I doubt they care much about the slogans.)

SG didn't try to claim protection in the type of models it uses, but I think that's mainly because it didn't really try to define its trade dress.

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