Grossman LLP | <strong >Court Rejects Sesame Street’s Argument That New Film Trailer Infringes On Sesame Street Trademarks </strong >
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  • Court Rejects Sesame Street’s Argument That New Film Trailer Infringes On Sesame Street Trademarks 
    06/05/2018
    Last week, a federal judge refused a request by Sesame Workshop—creator of classic children’s television show Sesame Street—to enjoin parts of a marketing campaign for an upcoming R-rated comedy film featuring a much darker take on puppets.
     
    Sesame’s complaint, filed May 24, alleged that the distributor and producer of the forthcoming movie The Happytime Murders violated state and federal law by, among other things, infringing upon, diluting, and tarnishing Sesame’s trademarks.   See Docket No. 18-cv-4597 (S.D.N.Y.).  The new film, which stars Melissa McCarthy, is about two detectives, one human and one puppet, who team up to catch a murderer targeting puppets.  By all accounts, the movie is filled with decidedly non-kid-friendly material, with the trailer featuring drug use, sex, prostitution, profanity, and violence.  Some of the individuals involved in The Happytime Murders have ties to Sesame; for example, Happytime director Brian Henson is the son of Jim Henson, who created many of the original Sesame Street puppets.  (Brian Henson has also worked on a number of Muppet movies; note that the Muppet franchise, which Jim Henson also played a major role in creating, is now largely owned by Disney, not Sesame.)  But formally, there is no connection between The Happytime Murders and Sesame.
     
    The focus of Sesame’s claims is the film’s tagline— “No Sesame. All Street.”’—which has been featured in the movie trailer and other marketing activities promoting The Happytime Murders.  Sesame’s court filings clarify that Sesame was not seeking to shut down the new film; rather, it wanted the court to enjoin the defendants from making any references to Sesame in the marketing campaign, especially the tagline.  Sesame argued, among other things, that the movie’s use of the Sesame trademark was likely to cause confusion among consumers.  Indeed, they put forward a number of pieces of evidence (gleaned from reviews, tweets and Facebook comments) showing that some consumers mistakenly believed that Sesame was somehow affiliated with the Happytime movie.
     
    On May 30, the court held a hearing to consider Sesame’s request for a temporary restraining order that would have forced the revision of the film’s marketing materials.  But the court refused to enter the order, holding that the tagline actually draws a distinction between the film and Sesame.  The judge also observed that Sesame had not demonstrated that moviegoers were confused, or that sponsors or parents were complaining. 
     
    This case bears some similarities to other recent cases where a humorous invocation of a famous brand was held inactionable as a legal matter.  For example, in a case we covered last fall (see here), involving a theatrical production featuring a grown-up, raunchy version of Cindy Lou Who from Dr. Seuss’s beloved Christmas classic book How the Grinch Stole Christmas.  The court in that case dismissed copyright and trademark infringement claims by the Seuss Estate; the court ruled, among other things, that the copyright claims were doomed on fair use grounds, and that there was little likelihood of consumer confusion to support the trademark claims.  And in a series of decisions about a line of totebags emblazoned with a cartoon drawing of a Louis Vuitton handbags and the note, “My Other Bag,” courts also agreed that the humorous use of the famous mark would not cause tarnishment or confusion, in part because the bags make it clear that they are not the original.  Cases like these do not mean that humor is a blanket get-out-of-jail-free card when it comes to copyright and trademark liability; but they do show that courts recognize the unique role of humor in these legal spaces.      
     
    It’s also important to note what this case is not about.  While the Grinch lawsuit involved the copying of literary characters, and the handbag lawsuit involved the copying of a design, the Happytime/Sesame dispute involved no copyright claims; this is because the Happytime movie did no actual copying of any copyrighted material owned by Sesame.  While Happytime is clearly toying with the juxtaposition between the wholesome puppets that shaped many of our childhoods and the raunchy puppets depicted in the film, copyright law does not protect ideas, and neither Sesame nor anyone else owns the idea of puppets and people coexisting in a modern city.  This is presumably why all of the plaintiffs’ claims here were in the arena of trademark or unfair competition, based on the use of the Sesame mark, and not based on copyright.
     
    Following the judge’s ruling last week, Sesame has now voluntarily dismissed the suit, so this appears to be the end of this particular skirmish, but we’re always watching for the next one.