The IP of Spongebob | The IP of Everything podcast - Episode 30

Aaron Johnson
Welcome, everyone, to the IP of Everything podcast, where we seek out and discuss the intellectual property issues contained in everything around us - from the obvious to the obscure. This month’s episode if the IP of Spongebob. In this episode, we will be discussing when trademark rights arise from fictional goods or services. It should be a fun episode. Thank you for joining us.

Aaron Johnson
Welcome to the IP of Everything podcast. I'm Aaron Johnson and with me as always is my co-host, Jennifer Van Kirk. Both of us are intellectual property attorneys and partners at the law firm of Womble Bond Dickinson. 

Hi, Jennifer.

Jennifer Van Kirk
Hi Aaron, happy to be here. Should be a great episode.

Aaron Johnson
Yeah, I think so as well. As you know, it's our IP of everything tradition to ask a personal connection to the topic. And so for this topic, I'd like to know if you have a favorite fictional brand for goods or services? Maybe something that you wish would reel or something you enjoyed in the fictional universe, anything?

Jennifer Van Kirk
You know, there's a lot of things, especially pretty much anything from Harry Potter, like how cool it would be to have like a broomstick or a wand or that kind of thing. But I did a little research and apparently none of that stuff will work for muggles. And in fact, can be dangerous. 

So the one thing that I saw that, apparently, according to Harry Potter lore would work for muggles, is a port key. So that'd be pretty cool, right? You just touch something and instantly you're across the country, like you wouldn't have to deal with airlines or airports. So that would be my choice.

Aaron Johnson 
Mm-hmm, right. And pardon my ignorance, because I don't know too much about Harry Potter, is there, is that a specific brand? Is there companies that make those or is it?

Jennifer Van Kirk
No, that's a good point. It wasn't a brand. It's just anything. I guess if you're to look at some of the brands like they're like that. So for example, one brand that was that comes to mind from Harry Potter is the I think it's Bernie Botts, Every Flavor of Beans.

Aaron Johnson 
Yes, right. Yeah, okay.

Jennifer Van Kirk
They have some disgusting flavors. I think that they have actually brought that to real life, though, and I think that that's the license. So that one is really out there. So if you wanted to get, I don't know, a booger flavored jelly bean, that is a possibility. Yeah.

Aaron Johnson 
Yeah, I feel like if that was a real brand, that'd be a scary branding. You'd want to go, but I'd be scared to eat their product. 

Jennifer Van Kirk
To try it.? Yeah, that's true.

Aaron Johnson 

And for me, I'd have to say, it's a Duff Beer from The Simpsons. I know it's kind of dating myself, but growing up, that always seemed like a lot of fun, or the Big Kahuna Burger from Pulp Fiction in Quentin Tarantino's films. They make it seem good in the movies. You see him eat it, it's a big part of it, and it kind of makes me wonder what it tastes like. If there was an opportunity, think, just based on that branding alone, I'd probably go for it.

And so today we are discussing trademark rights for fictional goods and services and how far those trademark rights extend. In particular, we're looking at two questions:

First, if a company owns the rights to a fictional story, movie or other product, that includes a fictional brand, when are they able to stop others from using that brand in the real world? 

And second, if a company in the real world wants to start using a brand that is also found within a fictional story or product, when can they?

And we should be clear here in this episode that we're gonna be focusing on fictional brands and how that relates to trademark law. While copyright law can also protect characters and other elements within a story, that protection is a little bit more conventional and outside the scope of this episode. So, I think it would be first to start with taking a step back and discussing the purposes of trademark law. 

Jennifer, can you give us a little background into the purposes of trademarks?

Jennifer Van Kirk
Sure. The Supreme Court recently stated that a trademark distinguishes one producer's goods or services from another's. Guarding a trademark against use by others secures to the owner of the mark the goodwill of her business and protects the ability of consumers to distinguish among competing producers. The Supreme Court has stated that this is intended to support the free flow of commerce and foster competition by allowing consumers to distinguish competitors’ products and services from each other and give competitors the incentive to promote goodwill in their brand name products and services. 

So, I always like to take a step back and think of trademark laws and consumer protection law at heart. So, there's a really well-known treatise in the trademark world named McCarthy's and McCarthy's states that trademark law has two goals:

that it serves to protect consumers from deception and confusion over trademarks, and it also protects the trademark owner's infringed trademark as property. 

And McCarthy goes on to quote favorably from a report from when the Lanham Act was being debated by Congress in 1946, where there they said, the purpose underlying any trademark statute is twofold.

One is to protect the public so it may be confident that in purchasing a product bearing a particular trademark, which it favorably knows, it will get the product which it asks for and wants to get. Secondly, where the owner of a trademark has spent energy, time, and money in presenting to the public the product, he is protected in his investment from misappropriation by pirates and cheats.

This is the well-established rule of law protecting both the public and the trademark owner.

Aaron Johnson 
And so Jennifer, listening to you describe those from the Supreme Court, from McCarthy, and authors of the Lanham Act, it doesn't seem they relate all that well to fictional brands. If we go back to your, I forget the name of this, the Jelly Bean store from Harry Potter, J.K. Rowling wasn't putting any effort into -

Jennifer Van Kirk
I'm sorry, but how can you not know anything about Harry Potter? You've got little kids. I'm going to send you these books.

Aaron Johnson 
I kind of passed me by, I don't know.

Jennifer Van Kirk
Yeah, you gotta read these.

Aaron Johnson 
Alright, I will do that. Hopefully by the time this comes out, I'll have read it least once. 

But so, you know, obviously the author of the book didn't put much effort in, you he's not protecting the brand. And I don't think if somebody sees that on the street, they're gonna maybe think it's Harry Potter connected or think it's real, just given the magical universe of Harry Potter. And so, it really doesn't seem to kind of fit nicely into those two twin prong purposes of trademark law.

Aaron Johnson 
Would you agree with that or how do you see that?

Jennifer Van Kirk
You know, I really don't agree. And I think that those fictional products do fit nicely into the two prongs. Because on the one hand, the author and her publisher and licensees and all that, they really do have a significant story, a significant investment in the story and the worlds that are created through these books.

And then also, and I also think that goodwill transfers, especially when something is as well-known as that, as say Harry Potter, or something similar to that or Simpsons. I do think that that goodwill transfers to the real world mainly because it is so common for companies to license those type of well-known fictional goods. So, I think if something comes up in the market, pops up in the marketplace that is the same brand for the same goods that you find in a fictional story, then I do think consumers are going to assume that there's a connection between like the author or the producer of that story and the product.

Aaron Johnson 
Interesting. I think that makes sense. I think one of the protections of the Lanham Act is also to protect against consumer deception. So, the question kind of leads to when does that deception occur? In other words, when does the use of a brand in the real world potentially infringe upon rights in a fictional brand? 

Jennifer, you had mentioned when a story becomes well known, and so it seems to kind of beg the question as to maybe at some point there's a line where a novel that nobody's read might not lead to that deception, but obviously a world-famous novel like Harry Potter could leave there. 

You know, one of the things I find interesting here is that one of the principles of trademark law is that different companies can use identical marks if they can coexist without confusion. This treatise you were talking about before, McCarthy on trademark, states that quote, classic trademark law mandates that it is possible that the exact same marks can peacefully coexist on different goods and services. And in fact, this is not uncommon in the world of commerce.

 I think in trademark law, there's lots of common examples, whether United Airlines versus United Van Lines, Delta Airlines versus Delta Faucet. These are common examples, I think, that are shown for the identical mark can be used as long as consumers aren't confused. Similar with restaurants and different geographical areas, this is a common occurrence in trademark law. 

And so I think it's interesting here the fictional versus real world distinction and how that plays out between using identical marks for different goods and services, or identical marks in different geographical areas. Here potentially identical marks, but real world versus fictional world. What are your thoughts on those distinctions? Do you think the real-world fictional world kind of compares at all to different geographical areas or different types of services?

Jennifer Van Kirk
Yeah, you know, I think it does. I think it just comes back, again, to the Lanham Act and trademark laws generally being consumer protection driven. If it's a situation where a consumer is going to be confused because the goodwill, you know, that they're aware of the goodwill associated with the mark, then I do think that there is a case for infringement.

Aaron Johnson 
Yeah, I think you're right there and I think courts have backed you up 100%. They've been very clear that just as with these other types of discussions about whether or not consumers are confused, a fictional brand can be infringed by a real-world brand. 

One court stated that, quote, the salient question is whether the fictional brand name as used will be recognized in itself as an indication of origin for the particular product or services.

That court also said that the underlying purposes of trademark are to protect goodwill and to protect consumers against confusion and monopoly. Extending trademark protection to elements of television shows that serve as a source identifier can serve that purpose. And it seems like they're kind of pointing to the exact same justification that you were that if a consumer identifies it, even as a fictional brand, and thinks that real world brand is connected, there is that confusion and deception that the Lanham Act is trying to protect against. 

And so I think the question here is where that line is drawn? So, during today's episode, we're going to discuss four cases that have involved fictional brands and then hopefully discuss and reach a conclusion about where this line is drawn. 

So, I'll start with the first case. This is Viacom International v. IJR Capital Investment out of the Fifth Circuit in 2018. And this is the one that this episode is named after.

It involved a lawsuit from the owner of SpongeBob SquarePants against a company that was planning on opening a Krusty Krab restaurant. In this case, the court held that, the Krusty Krab central role in the multi-billion dollar SpongeBob franchise is strong evidence that it is recognized in itself as an indication of origin for Viacom's licensed goods and television services. 

It also held that the Krusty Krab's key role in SpongeBob, coupled with its consistent use of the mark on licensed products such as toys and other things, made it immediately identifiable as an identifier for the source of goods and services. In that case, the court went through the full likelihood of confusion factors and analysis and found that there was a likelihood of confusion given the identical marks, the strength of the Krusty Krab mark, that both marks reference restaurants, even though one was fictional and one was a real restaurant, and that there was evidence of confusion. In this case, Viacom had commissioned a survey that found 35% of the public thought there was a connection between the Krusty Krab restaurant in the real world and then the owners of the SpongeBob franchise. And so, even though the defendant claimed, I'm not sure how believably, that they had no knowledge of SpongeBob, but even without that intent, the court held that there was still enough factors to find a likelihood of confusion. 

And so, what do you think, Jennifer? What do you think about this holding?

Jennifer Van Kirk
You know, that's the funny thing is that you somehow don't know much about Harry Potter. I have never once watched SpongeBob's. I've never watched a single episode ever. I still have heard of What's that?

Aaron Johnson

I think that's just as crazy as me not knowing Harry Potter. I think that's just as crazy as me not knowing Harry Potter.

Jennifer Van Kirk
Yes, I guess. don't know, but no, I have never watched it, but even I, who never watched an episode of SpongeBob, know of the Krusty Krab. So, I find that almost unbelievable. And I do know that I'm an outlier, that most people have watched SpongeBob and would really recognize that as an indicator, as a reference to that. And it's got the same spelling as K and K, which seems pretty hard to that. That was an happenstance, right? So yeah, so I agree with the conclusion. And I think the court got that one right. 

Aaron Johnson 
Yeah, yeah.

Yeah, and you know what, I was thinking about this and I also feel, you know, the court didn't mention it, but because this is a children's show franchise, for some reason I identify those shows more with commercialization. 

It just seems, you know, everything Disney has something related. And so everything, you know, the new one is Bluey. I don't know if you've seen that show from Australia, great animated show, but you know, they have everything, all the toys and Target and stuff. 

And so, it just seems that with a... as opposed to maybe a more adult sitcom, which might not be commercialized through toys as much, something like SpongeBob, I just expect if something's from that show, it's probably connected. So, I would agree. think the court got this right. I don't know what pushed them over if there was a survey or what, but I mean, even the- 

Jennifer Van Kirk
Yeah, that was a pretty significant survey finding. Would you say 35 %? Yeah, yeah, that was probably helpful to the plaintiff. 

Aaron Johnson 
 Yeah. All right. Do you want to talk about case two? 

Jennifer Van Kirk
Sure, I'm happy to do so. I'm also a Star Trek fan. Have you ever watched Star Trek? 

Aaron Johnson 
I have, yes.

Jennifer Van Kirk
OK, so in this case, it's Paramount Pictures v. Romulan invasions. It's a TTAB case from 1988. So here, you know, courts have not always found in favor of the plaintiffs, and have not always found a likelihood of confusion. In this case, it was an attempt by the owner of the Star Trek franchise to oppose an application for the Romulans for live entertainment by a musical group.

So similar to the Krusty Krab case, the board found that the Star Trek series was widely popular and the name Romulan had appeared on a number of episodes, books, and toys. But it was not, even though it had appeared in a number of episodes, it was not in very many episodes and therefore was not closely identified with Star Trek. The board also relied on the fact that the live performance services were different from how Romulan was used in Star Trek. 

Poser has not used the term Romulan or Romulans as a mark to identify and distinguish any services of a poser. The entertainment services performed by a poser are identified by the name Star Trek. The term Romulan has been used only as the name of a fictional race of people, which appears from time to time in the Star Trek television series and has apparently been mentioned in the movies.

The opposition was ultimately rejected, and the board found that although the opposer developed a storyline concerning a fictional race called Romulans and has used these characters in connection with its well-known Star Trek series, the only usage thereof, which approaches the requirement that a mark identify and distinguish the goods and services of one party from similar goods and services of another.

Is that in connection with spaceship models because there are some toy spaceships or something or model spaceships. The defendant did not have reasons for the name claiming it was a combination of Romans and Romulus, the founder of Rome. 

I don't know. I don't agree with this particular ruling, Aaron, but what do you think?

Aaron Johnson
You know, I thought it was interesting that the court, or I the board, mentioned that it wasn't used as an indicator of source. You know how in the Krusty Krab instance, that is the source of the restaurant, the name of a restaurant. And I guess the Romulans are people. In the Star Trek world, they're not, the word Romulans isn't referring to anything besides the race of people, right? It's not a store, it's not a shop. It's not anything, so there's nothing really coming from it, which I thought was an interesting distinction. And I'm not sure if that's kind of pushed the court one way the other here.

Jennifer Van Kirk
I also wonder if it was the timing because this is the decision is from 1988. So that was before Next Generation or a bunch of the spinoffs and that whole other line of movies. So, I wonder if the case had been 10 years later, maybe if it would have been a different ruling because Romulan wind up in just more in the kind of general like pop culture psyche. Maybe it just wasn't as much then, I don't know.

Aaron Johnson 
Yeah, and I thought it interesting that they had a claimed excuse for it, know, Romulus and Romans, but even that one seemed kind of made up out of nowhere because, you know, you hear Romulans, and maybe not in the 80s, but I hear Romulans, I immediately associate that with Star Trek. 

Jennifer Van Kirk
Oh yeah, oh yeah, absolutely. And in invasions, like Romulans were like, you know, they were like kind of the bad guys, right? And Romulan invasion, I think is immediately thinking Star Trek, but… 

Aaron Johnson
And you might know this better with your Star Trek knowledge, but are the Romulans as a race musically inclined at all? Is there any connection to bands? I know Star Wars has its of cantina band and stuff like that. Is there anything similar with Romulans? 

Jennifer Van Kirk
I don't remember anything, but maybe that's the case, but I just don't recall it.

Aaron Johnson 
Because I do think that seems to be the difference here where the Krusty Krab was a restaurant for a restaurant. Here, the Romulans apparently as a band was not used as a band on the show. And so I wonder if that kind of tilted things one way or the other. But it sounds like you disagree. You think this should have been infringing. 

Jennifer Van Kirk
I do disagree. I do disagree. I think I would have maybe slanted that a little differently.

Aaron Johnson 
Sure, Well, maybe you can reapply now and see what happens now that it's 30 years later.

Jennifer Van Kirk
Yeah, that's right.

Aaron Johnson 
All right, moving on to the third case and the world of comic books, which in a number of these cases have involved comic books. This is a 1978 Southern District of New York case called DC Comics v. Powers. And it involved the newspaper's use of The Daily Planet as its title. 

The court noted that the Superman comics have used the Daily Planet since at least 1938 in comics. Then the defendants created what they called a quote, underground news publication that was called The Daily Planet in 1969, more than 30 years after Superman first used it in the comic books. 

They noted that while DC Comics had never actually licensed the name The Daily Planet for a real world newspaper, DC Comics did consider it, quote, part and parcel of the typical licensing agreement. And indeed, it was clearly established that the Daily Planet has been prominently featured on many products emanating from these licensing agreements.

And for that he means like the Superman toys often had a Daily Planet kind of connection. And so while they didn't use it for newspapers, many of the TV shows, many of the toys, did include this kind of Clark Kent backstory of the Daily Planet. 

The court also found that the use here was intentional, “found substantial evidence indicating that the adoption by defendants of the name Daily Planet in 1969 was merely an attempt to cash in on the Superman story and its notoriety”.

It was also established that there were, throughout the brief history of the Defendant's Daily Planet, numerous references in the paper itself, not only to the Superman character, but also to the Superman story. I think some examples, they had column names that were referencing Kryptonite, Superman, things like that. So, there's really no excuse here. They knew about it. They used it purely to gain attention.

What do you think of this whole thing, Jennifer? 

Jennifer Van Kirk
Yeah, I think this one, I agree with this one as well. Daily Planet is unique, right? I did a search and, know, and according to AI, there is, you know, there is no actual Daily Planet newspaper out there. I think that the court even mentions that as well, at the time that this case came down, that there was no other paper out there so that people would uniquely associate this with the Superman franchise and story. 

I think that that probably played into it. I think the intent played into it as well, you know? The fact, like you said, they use kryptonite and other things that are uniquely associated with Superman. So their intent didn't look good, which I think is never a helpful fact for a defendant.

And that might be, maybe that's one of the things that distinguished it from the Romulan case, although I still think that they were targeting Star Trek. But you know, too, with the Romulan case, maybe there had something to do as well with the function of a band name being somewhat expressive. I'm not sure. But I do think that the DC Comics case was well decided.

Aaron Johnson 
Yeah, I think I agree with you. I was interested in why they would choose this because I feel like the Daily Planet, it's not, I know it's from Superman, but it's not known for being breaking news, right? I think it makes mistakes in its reporting and things like that. And so it seems odd that this would be chosen and almost more of this kind of like a last ditch effort by a paper, to try to get some attention, try to get somebody to buy it. And, you know, clearly not working here.

Jennifer Van Kirk
Yeah, or could it just be that initial, kind of the initial interest confusion, right? Where somebody's going to take another look at this paper because it's called Daily Planet. Especially if they're a Superman fan, to be like, oh, what's this? Is there something new? When they might not have given it a second look if it were called something totally different.

Aaron Johnson 
Yeah, that's a good point. One of the things that bothered me about this case was that the court focused on the name being, quote, closely associated with the presentation of the Superman story, which seemed to be a very wishy-washy test. Almost like a I know it when I see it type of test. Because as you mentioned, with the Romulans, you know, I would associate Romulans as a unique name very closely with Star Trek, similar to the Daily Planet. And so this kind of line about when is an element or when is a brand name closely associated with the story, versus not closely associated seems to be a hard line. And I'm sure the court had issues describing it, but not the best test for determining when something's going to infringe or not infringe.

Jennifer Van Kirk
Yeah, so it's going to come down to whether the fact finder is a fan of your particular franchise. 

Aaron Johnson 
It might be, yeah.

Jennifer Van Kirk
Right? If those TTAB judges were Star Trek fans, I bet that would have come out differently.

Aaron Johnson 
Well, on that, what if that band was a Star Trek themed band? Would that have pushed it over? Because here the newspaper referenced it. 

Jennifer Van Kirk
Well, was certainly, yeah, yeah, yeah. That was certainly the intent, you know, go against them. So yeah, no, that's an, that'd be an interesting fact spin there.

Aaron Johnson 
Okay, yeah. All right, do you want to go through the last one? 

Jennifer Van Kirk
Sure, so the fourth and final case, it's a 2018 Northern District of California, or from the Northern District of California.

The court held that using the name of a fictional card game from Star Wars could be an infringement. It denied a motion to dismiss and the case letter later settled with a consent judgment against the defendants. So the card name is S-A-B-A-C-C. Is that Sabaq? Do you know how that's pronounced? Sabaq? 

Aaron Johnson 
actually don't know, think Sabacc or Sabaic, I'm not sure.

Jennifer Van Kirk
Okay. We'll call it Sabaq for the purposes of this. So Sabacc was used in initial drafts of the Empire Strikes Back, but not in the final version of the film. It was included in the novel of the film, as well as a number of other novels for the Star Wars characters. Han Solo won the Millennium Falcon over that game. The court held that in the decade since crafting Sabacc, Lucasfilm and its licensees have used the mark on or in connection with a variety of products including card games, comic books, and television episodes. 

As a result of the long and extensive use of the Sabacc mark by Lucasfilm and its licensees, the public recognizes it as uniquely associated with Lucasfilm and the Star Wars franchise.

The defendants created a mobile game app entitled Sabacc, a high stakes card game, which allows users to play an online card game as a single player or against another. They also obtained a federal registration for the mark Sabacc, covering goods in class 9 and also services in class 41. So, photographic devices and entertainment services, respectively.

The courts have long found fictional elements of expressive works and can function as trademarks when those elements symbolize the plaintiff or its product to the consuming public.

The court also found that plaintiffs and their licensees have used the Sabacc mark on or in connection with card games, mobile games, video games, magazines, comic books, novels, television episodes, a live theme park experience, and a major motion picture. 

So therefore, the motion to dismiss was denied. And then after settlement, the defendants voluntarily surrendered their registration for cancellation.

So, Aaron, what do you think about this holding?

Aaron Johnson 
You know, this is interesting because I consider myself a Star Wars fan, although clearly not too big of a Star Wars fan, because I never heard of this card game before. You know, I've seen the movies, but apparently not read enough of the, I guess, the greater universe. And so, you know, it's interesting comparing the other cases where I instantly knew the marks. Here, if I saw an app on the app store for Sabacc, I would not associate it with Star Wars. But, you know, the court here, I guess, found that enough people would, that I guess at least they denied the motion to dismiss. We would have had to obviously see what happens had it gone to trial. I feel like this could be a line where for a universe as big as Star Wars, there's gonna be so many names, so many brands, so many things thrown around. Not everything can be protected. Not everything can't be used. I think they might have gotten this one wrong unless that game itself was really closely connected to Star Wars.

Jennifer Van Kirk
Yeah.

Aaron Johnson
What do you think, Jennifer?

Jennifer Van Kirk
Well, you know, I thought... It might come back to intent again, because I guess in this game that it had something on that said “from a cloud far, far away”. And then it had something that said also, we won't take away your ship. So I think reference to the Millennium Falcon lore about how that's how Han Solo won the Millennium Falcon. So maybe that helps sway them, you know, at least, know, again, especially at the motion to dismiss stage, that they were being that they were really targeting Star Wars. So that might have been enough to get them over that hump, even like, if you said, they might not have won a trial. 

Aaron Johnson 
And again, here is another example where even though it was a mobile app, it was a card game focused mobile app. And so they were using the brand in the same way that the brand is used in the fictional universe as well, which seems to, at least in the cases we've looked at here, be a pretty good indicator of finding infringement. 

Jennifer Van Kirk
Yeah, I think that's right. you know, the amount of licensing that they least initially alleged that they had, you know, in connection with this name. I'd be curious to see how that evidence actually played out. They, you know, it had quite a bit of allegation of that. So maybe that was helpful too. And just the fact that it is such a unique name, too. Again, this would have been a fun one to see how it came out if both sides had really had a chance to flesh out their cases. 

Aaron Johnson 
Absolutely. And so looking back on these four cases, Jennifer, do think there's any conclusions we can draw or summaries we can make about when a fictional brand is protected in the real world? 

Jennifer Van Kirk
Yeah, so I think that the biggest factors are, you the first is whether the brand is for the same type of goods and services as in the fictional world, like, you know, the crusty crab, both being restaurants.

Second would be how well known is the fictional world? If this is a somewhat niche series nobody's heard of, I just don't think that the case would be nearly as strong. And then of course three, if there's an intent to to use the goodwill of the fictional world. So in other words, if they're really targeting that goodwill and trying to free ride, then I think that that also strengthens the plaintiff's case and it is a very bad fact for the defendant.

Aaron Johnson 
Yeah, I think that makes a lot of sense and that's a good way those three elements of kind of showing why each case was going one way the other. So, know, something I find interesting is that there are a lot of cases, a lot of examples where they're not using the mark from the show, but they're twisting it a little bit. They're clearly suggesting a relationship, and in most of those, they're not finding infringement. And so, what are your thoughts on how that works? 

For example, just in the San Francisco area alone there's a few coffee shops with connections to friends, but instead of using the name that they use in the show, which is Central Perk, they might call it something else Perk, or the Orange Couch Cafe. These names that don't steal from the show, but clearly suggest the show.

Jennifer Van Kirk
Yeah. Yeah. And I think it just comes down again to confusion. I mean, that like the, what was it? The orange sofa cafe? that the one? 

Aaron Johnson 
The Orange Couch Coffee Shop.

Jennifer Van Kirk
Orange couch coffee shop. I would, I think it would take me so long to puzzle what that meant that it would, I don't know that I would be confused. Even if I eventually realized that was a reference to Friends, it would be such an oblique reference. I wouldn't think that it would be licensed. So I think it just comes down to the confusion again.

Aaron Johnson 
And I think it goes back to what you were saying at the start of the episode where it's, you know, would a consumer expect it to be from the main brand? And I think at this point, we're used to these kind of plays on words. And we know that if you're not using it directly, it's probably not connected.

Jennifer Van Kirk
Yeah, it's like the big game, like the big game things that people always talk about with the Super Bowl. You know that they're not licensed when they're going to so much effort to talk about, to not talk about the Super Bowl, or not use the word Super Bowl. That really big game that's at the end of the season for the teams.

Aaron Johnson 
Exactly. Right.

Right. And going back to Harry Potter, so there's a bar here in San Francisco called Wizards and Wands. Harry Potter themed bar, got a lot of Harry Potter merchandise up. I think clearly they're trying not to use a brand from the world. So wizards, wands, very generic names, put them together. But there's still that wink wink. So if somebody's looking for it, they kind of know it's a Harry Potter themed bar. Do you think that crosses the line or is that something where consumers probably aren't going be confused.

Jennifer Van Kirk
Yeah, I think the name itself is fine. It'd be interesting to go to the place and see if they cross any lines within their internal branding. I think those are such generic names because those two words are common in witch lore, witch and wizard lore, not just Harry Potter.

Aaron Johnson 
Yeah, so going back to those three elements you mentioned, that would be where it's not using the brand, right? And so it might be about a fictional world, but there's no intent to take the goodwill. The brand is different. And so there, like you're saying, the consumer deception seems pretty unlikely.

Jennifer Van Kirk
Yeah, I think that's right. Yeah.

Aaron Johnson 
All right, great. Well, that wraps up all we had. Is there anything else you think we should talk about about? About these kind of fictional versus real world distinction?

Jennifer Van Kirk
Now, although I do expect you had to have Harry Potter read by our next episode, so I will be sending that to you. Okay, okay, great.

Aaron Johnson 
Done, I will make sure that happens. And then maybe it will be a new law firm name, I'll have to see what brand. Is there a law firm in the Harry Potter universe? Are there lawyers?

Jennifer Van Kirk
No, I don't think there is. No, I was just thinking about there's a couple of restaurants, like the, I think three Broomsticks and Rusty Cauldron, I think are two. But I don't remember any lawyers. Yeah.

Aaron Johnson
Maybe for the next book.

All right, well, that is it for this month's episode. Thank you, everyone, for listening and joining us today. I hope you found this as interesting as we did. 

Please tune in to our next episode, where we will be discussing the IP of social media.