Wednesday, February 21, 2007

Pitbulls dueling in court: so what else is new?

Slip-N-Slide Records, Inc. v. TVT Records, LLC, 2007 WL 473273 (S.D. Fla.)

Plaintiff SNS sued TVT for tortious interference and other claims based on the sale, marketing, and distribution of the album Welcome to the 305, which contained recordings by a rap artist, Armando Perez, who performs as “Pitbull.” Perez is currently signed to TVT, but made earlier recordings under another contract, to which SNS claims rights; its tortious inteference claims are based with TVT’s efforts to suppress the distribution of the 305 album. TVT counterclaimed for trademark infringement and Lanham Act violations based on TVT’s Pitbull mark and logo.

The court denied cross-motions for summary judgment on all counts. Among other things, there were factual disputes over whether TVT had protectable rights in its stylized Pitbull logo and over whether SNS’s use of the term (in lettering very similar to the Old English-style lettering TVT uses) was likely to cause confusion. (It seems like there’s a nominative fair use defense in there at least with respect to the name, but the court didn’t discuss it, perhaps because the use of similar lettering obviously goes beyond the ordinary bounds of nominative fair use.)

TVT counterclaimed for false advertising, arguing that SNS unlawully promoted the 305 Album as a “new” Pitbull album, when in fact it contained older recordings. SNS used recent photos of Pitbull in promoting the songs; the album cover didn’t have a disclaimer indicating that these were older, unreleased recordings; and ads stressed “new music from Pitbull.” At the preliminary injunction hearing, the magistrate judge rejected TVT’s claim, finding no evidence that SNS advertised the album as “new” or a “follow-up” to Pitbull’s album with TVT. He further determined that the photos weren’t false advertising because TVT had no rights in those photos and because there was no evidence that Pitbull’s look or style was related to any particular period in his career. Even if the public would be confused, the magistrate found insufficient evidence that TVT had been harmed. The court agreed, but considered it more appropriate for a jury to resolve the issue.

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