Lyons makes two arguments with respect to its trademark confusion claim. The sketch would begin with the Chicken disco dancing. The Chicken would then indicate that Barney should try to follow the Chicken's dance steps (albeit, by slapping the bewildered dinosaur across the face). Barney vs. 5: San Diego Chicken vs. Milwaukee Barney. Giannoulas offers a slightly different perspective on what happened. Premium Meats; Premium Seafood; Specialty Foods; Organics; Beer & Wine; Barney’s Party Trays Lyons has filed a timely appeal with respect to the Lanham Act claims, the Copyright Act claims, and the award of attorneys' fees. Homestyle Fried Chicken. The moving party is entitled to summary judgment if the record establishes that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”   Fed.R.Civ.P. Therefore, a strong mark is not as relevant a factor when the use is that of parody.6. Pretty funny, this two characters compete against each other, who is better? In one poignant account related by Lyons, a parent describes how the spectacle brought his two-year-old child to tears. Chicken vs Barney at a baseball game . Hot Wings at Barney's Beanery "My friends and I come here after class and it's fun, the neighborhood spot. My Recipe Box Menu "Specifically, Giannoulas would punch, flip, stand on and otherwise assault the putative `Barney,' " the lawsuit alleges. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. At this point, Barney would break character and out-dance the Chicken, to the crowd's surprise. First, Lyons notes that Giannoulas himself admits that he did not have a definite plan when he incorporated Barney into the act. 2. Lyons ultimately filed a suit against Giannoulas and TFC, alleging trademark infringement, false association, unfair competition, and trademark dilution under the Lanham Act, copyright infringement, and other claims. Simply put, although the fact that conduct is a parody is not an affirmative defense to trademark infringement, a parody should be treated differently from other uses that infringe on a trademark. One Internet search service provides a list of links to anti-Barney web sites, many of which contain warnings like the following:  “If you're offended by material that suggests the killing of Barney, or like him in any way, please don't come here.”. 16 of 20. For along with his steady diet of giggles and unconditional love, Barney offers our children a one-dimensional world where everyone must be happy and everything must be resolved right away.”   Chala Willig Levy, The Bad News About Barney, Parents, Feb. 1994, at 191-92 (136-39). Lyons Partnership began sending letters to Ted Giannoulas, who portrays the Chicken, demanding that he stop the alleged violation of Lyons' rights on the Barney character. Who will be king of the Cretaceous period? Having made that finding, the district court did not err in concluding that the nature of Giannoulas's use is relevant when analyzing the other digits of confusion to determine likelihood of confusion. Barney may love you and he may love me, but he doesn't love The Famous San Diego Chicken. Such a result would effectively tie the district court's hands unnecessarily and prevent the district court from applying common sense to determine whether a particular factor is actually likely to lead to confusion. Because Lyons continues to contest this issue on appeal, we first address whether there are any genuine issues of material fact regarding whether Giannoulas was engaged in parodying Barney. J.B. Pritzker gives a coronavirus update, After Twitter outcry, 5 women detail Chris D’Elia’s alleged sexual improprieties. Lyons contends that there is a factual issue regarding whether Giannoulas used images of the Barney character that appeared in mass media to promote his service. Barney vs. With respect to services, a mark is used in commerce “when it is used in the sale or advertising of services.”  Id. While it is only one factor to consider, it is a factor that must be considered in conjunction with all of the other digits of confusion. Please try again. However, as the district court correctly noted in this case, when a consumer encounters the use of a trademark in a setting that is clearly a parody, the strength of the mark may actually make it easier for the consumer to realize that the use is a parody. He was Calgary’s most successful and innovative early food-service franchisee, the man who brought Kentucky Fried Chicken to Alberta. This point is clearly established by the fact that the Chicken's actions toward Barney seem to have always been antagonistic. The second argument made by Lyons is that the audience could not have understood the performance to be a parody. Have to say oatmeal, because the thought of cold chicken makes me throw-up a bit. In addition, a person dressed in a Barney costume has made public appearances at numerous events, including inaugural balls at both of President Clinton's inaugurations, a Red Sox game (where Barney threw the first pitch), and a public appearance with Nelson Mandela. It seems the chicken takes the stuffing out of Barney on the field. Follow us on Instagram! The San Diego Chicken. 6. As one commentator puts it, the real danger from Barney is “denial:  the refusal to recognize the existence of unpleasant realities. Firefox, or The district court ably considered the other digits of confusion in this respect, and we find no error in its conclusion that there is insufficient evidence to support a violation under the Lanham Act. Giannoulas's argument is that, based on our reasoning in Elvis, the relevance of the conduct being a parody is only one “digit” to be considered among the “digits of confusion.”   Lyons argues the district court erred by relying on the conduct being a parody to conclude that the other factors did not indicate a risk of confusion. See what Julianna Barney (jbarney) has discovered on Pinterest, the world's biggest collection of ideas.