It’s been almost 30 years since we were introduced to bad boy dance instructor Johnny Castle (Patrick Swayze) and sweet daddy’s girl Frances “Baby” Houseman (Jennifer Grey). This star-crossed duo shimmied their way to stardom in the iconic 1980s movie, Dirty Dancing. You remember the last scene, don’t you? It’s the final night at the Catskills resort and Johnny tells Baby’s father that, “[n]obody puts Baby in a corner.” Johnny then extracts Baby (from the corner) and the two put on a dance number culminating in “The Lift”—where Baby effortlessly sails into the outstretched arms of Johnny. All these years later, that scene is at center stage in a trademark infringement and dilution suit in the U.S. District Court for the Central District of California. Here’s what happened:
In a recent ad campaign launched by TD Ameritrade, it cribbed from that final scene in Dirty Dancing. The ad at issue had the title “Nobody puts your old 401(k) in the corner” accompanied by cartoon imagery of a piggy bank being “lifted” by the outstretched arms of, presumably, a financial advisor from TD Ameritrade. Whoever put this campaign together certainly must have had the time of their lives, but at least one party was not pleased with this final number.
Lions Gate Entertainment sued, claiming that TD Ameritrade was infringing and diluting plaintiff’s common law trademark rights in “Dirty Dancing” and “Nobody Puts Baby In a Corner.” With respect to the latter mark, Lions Gate has apparently used it as a trademark on merchandise and licensed it to a variety of licensees (interestingly enough, Lions Gate had only recently sought registration for the mark). TD Ameritrade moved to dismiss the dilution claim. The Court gave that claim the boot, finding that the diluting mark was not “identical or nearly identical” to the Plaintiff’s mark as required under the Lanham Act. Lions Gates moved for reconsideration arguing that under the Trademark Dilution Revision Act, it was no longer necessary to plead that the two marks were “identical or nearly identical.” Instead, the “degree of similarity” between the two marks is just one of the factors to be considered. The Court agreed that its prior order relied on the old standard for dilution as opposed to the more recent articulation handed down by the Ninth Circuit in Levi Strauss v. Abercrombie & Fitch. As a result, the trial court reinstated the dilution claim allowing Lions Gates to continune to claim that “this is my dance space. This is your dance space. I don’t go into yours, you don’t go into mine.”
We will need to wait and see if this claim is ultimately strong enough to prevail, or whether it has a case of “spaghetti arms.”