The court here dismisses trademark/unfair competition and
copyright claims against a reality TV show with the same name as Reflex’s
earlier YouTube series on the same general idea, “Love at First Flight.” The copyright claims were dismissed with
prejudice, the TM/unfair competition claims without, and Reflex dismissed the entire
case thereafter.
In early 2015, Reflex began to develop a reality
entertainment series, Love at First Flight. Its coplaintiff Clover8 applied for
a federal trademark registration. “In
advertising for the Original Series, it was described as a new web series by
travel dating site, MissTravel.com, following two ‘singles’ as they go on a ‘destination
first date.’” The advertising asked: “Will these singles miss their connection,
or will they find Love at First Flight? Watch to find out!” Reflex cast “individuals with substantial
social media audiences.” The first four episodes appeared in August 2015 and
are still featured on a YouTube channel and the MissTravel website. Each
episode notes in the description that it is part of the Love at First Flight
series (using standard font) and features a logo, “LOVE AT FIRST Flight by Miss
TRAVEL,” in mixed cursive/block lettering and mixed black/aqua colors.
In late 2015, one of the defendants approached Reflex about
adapting the original series for TV. They had various connections to the other
defendants, some of whom began to develop the allegedly infringing series. In late 2016/early 2017, they began to cast
people; the casting call was titled “Take A Trip and Meet the Love Of Your Life
On FYI Network’s TV Show Love at First Flight.” Reflex first wanted a piece of the pie and
then asked them to use a different name for trademark reasons, but received no
response.
Six days after Reflex told the relevant defendants it owned
a common law trademark, defendants applied for “LOVE AT FIRST FLIGHT” as an ITU
for “[e]ntertainment services in the nature of a television and multimedia
program series featuring subjects of general human interest distributed via
various platforms across multiple forms of transmission media; providing
entertainment information to others via a global computer network.” The filing
declarations included a statement of belief that it was entitled to use the
mark in commerce and that no one else had that right.
Despite further protests, defendants showed the first
episode of their show on March 20, 2018 on Lifetime, owned by A&E, and
aired eight total episodes. After the debut of the allegedly Infringing Series
and five more times, AfterBuzz TV published a 52 minute video titled, “Love at
First Flight Season 1 Episode 1 Review & Reaction,” discussing the
allegedly infringing series. To promote the series/the aftershow, defendants
(at least AfterBuzz) allegedly used Reflex Media’s logo as its thumbnail
image link to the After Show’s live stream and video.
As for the alleged copyright infringement, Reflex alleged
that its series
consists of individuals meeting for
the first time in-person on multiple-day dates in exotic locations such as Hawaii;
Cabo San Lucas, Mexico; Vancouver, Canada; and Costa Rica, and other planned
locations to include landlocked cities like Las Vegas. The participants
featured in the show are young attractive singles who participate in bonding
activities such as: attending a live performance featuring shirtless male
dancers, zip lining amongst trees, dinner dates, waterfall activities, boating,
paddle water activities, and ocean snorkeling.
It alleged that defendants’ series
similarly consists of multiple-day
dates in exotic locations such as Hawaii, Las Vegas, Seattle, and New York
City. The participants featured in the Allegedly Infringing Series also are
young attractive singles who participate in bonding activities such as:
attending a live performance featuring shirtless male dancers, tree climbing
using climbing lines, waterfall activities, boating, paddle water activities,
and ocean snorkeling.
The complaint also alleged that both sets of series convey a
“theme and mood of fun, adventure, and anticipation for the prospect of
burgeoning romantic feelings between the participants on the show” and that defendants “copied the core plot,
theme, mood, settings, and characters of the Original Series, including an
attempt to use one of Reflex Media’s previously used cast members.” The “theme
and mood” of each show allegedly “conveys fun, adventure, and anticipation for
the prospect of burgeoning ‘romantic feelings’ between participants.”
Trademark claims: Rogers
applies, and Empire tells us
there’s no exception for title-on-title claims in the 9th Circuit. (1)
Artistic relevance is obviously above zero based on the pleadings, but (2)
after the Honey Badger case, the second prong requires more factual analysis
and might not be appropriately resolved on a motion to dismiss, even though it requires explicit misleadingness
and the relevant question is “whether there was an ‘explicit indication,’
‘overt claim,’ or ‘explicit misstatement’ that caused ... consumer confusion.” As
past precedent establishes, survey evidence demonstrating confusion over
endorsement isn’t relevant: “evidence must relate to the nature of the behavior
of the identifying material’s user, not the impact of the use.”
Reflex identified three facts that it thought showed
explicit misleadingness: (1) both series bear the same name, (2) YouTube shows commingled search
results for both series, and (3) AfterBuzz promoted the allegedly infringing series
using the Reflex logo. However, the complaint did not allege explicit misleadingness
about the content or source of the work. “Plaintiffs’ reference to what
essentially amounts to mere use is not enough to satisfy this prong.” [The relationship between AfterBuzz and the other
defendants was not entirely clear. According to the complaint, they "partnered" with AfterBuzz to promote the show. AfterBuzz describes itself as "the digital broadcast network dedicated to producing live and on-demand after-shows, news and coverage for nearly every TV show." Make of that what you will; it sounds like a careless person involved in producing/uploading the video grabbed the wrong image, which I agree is a mistake--among other things, it promoted a website that hadn't paid for the privilege--but probably shouldn't contaminate the rest of the activities at issue.]
Dismissed without prejudice.
The copyright claims fared even worse; based both on the
allegations and the judicially noticed/intrinsic to the complaint content of
the two shows, the court dismissed them with prejudice for failure to satisfy
the extrinsic test for substantial similarity.
Plaintiffs argued Ninth Circuit precedent doesn’t allow for
dismissal of a copyright claim once the allegations are properly in place, but
that’s not true where it’s extrinsic similarity that’s the problem.
In applying the extrinsic test, courts compare “not the
basic plot ideas for stories, but the actual concrete elements that make up the
total sequence of events and the relationships between the major characters.”
Courts filter out “(1) scenes a faire that necessarily
result from the choice of a setting or situation; (2) purely utilitarian
elements; and (3) elements of expression merged with the underlying idea.” In
this analysis, elements that are “similar at the abstract level” but are
“markedly different” in their particulars are not substantially similar.
The plots here were very simple (and the allegedly
infringing series followed the structure of many other dating reality shows, the
existence of which the court took judicial notice). Defendants’ hour-long series had participants
paired off with another person with whom they embark on a 30-day trip across
the United States. All eight episodes tracked the same handful of pairs, “with
the looming and ultimate question being whether they will ultimately marry the
other person.” At each location, they engage in bonding activities and win or
lose various challenges, rewarding with either a motel or a luxurious hotel,
depending on the outcome. At the finale, the pairs physically go to the wedding
altar and decide whether they will marry each other or not.
Reflex’s series had key differences: each 13-minute long
episode followed one pair of participants that meet for the first time in
mostly foreign destinations. “Among each pair, one person is a social media ‘influencer’
or ‘personality’ with the other participant being a ‘Miss Travel [dating
application] user.’” The show mentions Miss Travel throughout and the pair
generally stays at high-end vacation rentals. The parties generally go their
separate ways at the end of the episode. “In the four episodes presented to the
Court, the couples get along with little to no friction,” in contrast to some
of the events on the reality show.
The generic elements were similar, but there were no
substantial similarities in the plot’s objective details. The court filtered
out: (1) casting young attractive singles, (2) filming multiple-day dates in
exotic locations, (3) contestants participating in bonding activities, and (4)
a theme and mood of fun, adventure, and anticipation for the prospect of
burgeoning romantic feelings between the participants on the show. That last
generic stock theme/mood “necessarily
flows from the basic generic premise of the shows about participants dating
through bonding activities while traveling.” There was no alleged similarity in
dialogue, and the settings varied (Reflex generally used large US cities, while
the allegedly infringing series was predominantly set outside the US mainland),
and even if the settings had been the same/similar, that would still have
flowed from the basic premise and constituted non-protectable scenes-a-faire. As
for characters, “the participants play themselves. … Though there might be
similarities between some of the characters, such as their pursuit of romance
or love, those are merely stock character traits and they flow from the basic
premise of the series.” The paces of the
series were markedly different—pairs interacted for a short period in the
original series, and for 30 days in the allegedly infringing series. The pace
of each series flowed naturally from their implementation of the basic plot
premise.
Identical titles: here the law wobbles. Titles aren’t protected
by copyright, but can “have copyright significance as one factor in
establishing whether the substance of plaintiff’s work (not the title) has been
copied.” [As circumstantial evidence of copying in fact … okay, I guess, but how
it relates to substantial similarity is completely unclear, but it’s the Ninth
Circuit.] Despite the title, there’s no substantial similarity between any protectable elements here, so the court
dismissed the copyright claim with prejudice.
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