Link: http://www.roadrunnerrecords.com/blabbermouth.net/news.aspx?mode=Article&newsitemID=119506
I love it when there's legal news about metal. It means I actually have something interesting to say here.
Basically, the story is this: there is a comic book called Iron and the Maiden. The band Iron Maiden has decided that this is an infringement on their trademarked name. They are seeking an injunction against the creators to pull all Iron and the Maiden merchandise including the comic books and to pay damages.
The creator for the comic book believes this suit is completely without merit, and he's right. In order to succeed in a trademark infringement case, there must be one major element present. The infringing trademark must be identical to the other trademark or there must be a likelihood of confusion. We are talking about a name here, not a logo, so the infringing trademark is "Iron and the Maiden" and the infringed trademark is "Iron Maiden."
Luckily for us, some U.S. courts have given us factors to look at in determining whether there is a trademark infringement. Let's look at these tests and then apply them:
A. AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (C.A. 9) 1979. This case gave us eight factors to look at:
1. Strength of the mark
2. Proximity of the goods
3. Similarity of the marks
4. Evidence of actual confusion
5. Marketing channels used
6. Type of goods and the degree of care likely to be used by the purchaser
7. Defendant's intent in selecting the mark
8. Likelihood of expansion of the product lines
1. Okay, what we have here is a world famous band against a comic book that I would guess does not rise to the same level of fame as the band. Factor #1 probably goes in favor of Iron Maiden. Most people who hear that term would think of the band, although some may think of the medieval torture device as well, but I digress.
2. Band vs. comic book. These things are not close. I doubt anyone who is looking for something by the band is going to pick up the comic book mistakenly.
3. There is a similarity here though, despite the two extra words in the name of the comic book.
4. See #2. I doubt there could be any proven actual confusion here.
5. I'm not sure here, I doubt this goes in the band's favor. I'm not sure how comics are marketed but I suspect you probably have to be looking for comics.
6. Once again, see #2. I strongly doubt anyone looking for Iron Maiden merchandise will be picking up this comic book.
7. I don't have the facts here so I can't speculate. It is possible that the comic creators wanted something similar to the band. It's just as possible that that thought never entered their minds.
8. I would be shocked if the comic book took off and got a movie deal, video game, etc. So far it's a five part comic book. Not many of these things get off the ground.
There are maybe two factors in this test that are in favor of the band's lawsuit. My theory could go out the window if this was an intentional infringement. I doubt it is though.
In re E.I. du Pont de Nemours & Co., 476 F.2d 1357 (CCPA 1973). The DuPont factors are as follows:
1. The similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation, and commercial impression.
2. The similarity or dissimilarity and nature of the goods . . . described in an application or registration or in connection with which a prior mark is in use.
3. The similarity or dissimilarity of established, likely-to-continue trade channels.
4. The conditions under which and buyers to whom sales are made, i.e. "impulse" vs. careful, sophisticated purchasing.
5. The fame of the prior mark .
6. The number and nature of similar marks in use on similar goods.
7. The nature and extent of any actual confusion.
8. The length of time during and the conditions under which there has been concurrent use without evidence of actual confusion.
9. The variety of goods on which a mark is or is not used .
10. The market interface between the applicant and the owner of a prior mark .
11. The extent to which applicant has a right to exclude others from use of its mark on its goods.
12. The extent of potential confusion .
13. Any other established fact probative of the effect of use.
Not all of these factors will be relevant or of equal weight in a case. Any one factor may control the entire case.
This is the test used most often in U.S. Courts.
1. This goes against the band. The names are somewhat similar, but there are two extra words in the comic name. The logos don't look similar at all. As far as commercial impression goes, no one is likely to confuse the two.
2. Nope, the goods are too different. The band does not lend it's name to comic books. The comic creators don't make music.
3. This goes back to the marketing factor in the other test. I don't think there's any overlap here at all. The band advertizes in music magazines, the comic advertizes in other comics.
4. Again, no one in their right mind would buy the comic when they are looking for band merchandise.
5. Iron Maiden is a world famous band.
6. There probably are not a lot of other things going by the name "iron maiden" other than the aforementioned torture device that the band got it's name from. But this actually works against the band because they did name themselves after a real thing.
7. Very difficult to prove any actual confusion because there probably isn't any.
8. It looks like the comic has only been around since about 2007, so approximately two years without actual confusion. I'm guessing it would be better to have a short time without confusion for the band, but at some point there still needs to be confusion and this case is lacking in that.
9. Huh, I'm not sure I know what this factor is looking for.
10. None.
11. I'm not sure of how this one will work out and I am not entirely sure it's relevant. Once again, the band named itself after a real device, that cuts down on it's chances. It's not like Metallica where the band invented a word.
12. Again, probably none.
13. I don't know of any, but if it was an intentional thing to make it similar to the band's name, which there is no evidence that it is, this would probably go here.
There are no dispositive factors in favor of the band's lawsuit here. Most of the factors work against Iron Maiden.
Based on both tests, there is no likelihood of confusion here. The Plaintiff would have the burden to prove that there is and I just do not see any chance of Iron Maiden succeeding there. If they were to do so, the Defendant could raise defenses such as laches (Plaintiff slept on their rights) or some sort of specific defense, but I don't think this case would go that far.
Overall, there's no way there is any merit to this case. It will probably get settled out of court unfortunately. I would like to see the comic creators fight it, but ultimately that is expensive. Unfortunately the rich frequently win these things by outlasting the other party. It's not fair, but it is how it is.
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