USDC S.D. Mississippi, February 29, 2008
The district court granted Viacom’s unopposed motion for summary judgment in this trademark infringement dispute relating to the television series The Joe Schmo Show on Spike TV and the plaintiff’s trademark “Joe Shmo.”
The plaintiff, who is a disc jockey and goes by the name Joe Shmo, registered the mark Joe Shmo in 2005 and used the mark on compact discs and party flyers since 2001. To determine whether there is a likelihood of consumer confusion between the two marks, the court applied the seven “digits of confusion” including the strength of the plaintiff’s mark, the similarity between the marks, the similarity between the products, the identity of purchasers, the identity of advertising media used, the defendant’s intent, and evidence of actual confusion.
The court found that the plaintiff’s mark is not distinctive or well known even in the plaintiff’s own field of music performance; the two marks although phonetically similar are easy for the public to distinguish, the parties’ products (music performance and a television series) are not similar; the distribution modes for each product are different; there is no evidence of the defendant’s intent of having adopted the name The Joe Schmo Show in order to cause consumer confusion; and the defendant failed to submit any evidence showing actual confusion. The court concluded that there is no likelihood of confusion between the two marks.
In addition, the court dismissed the plaintiff’s trademark dilution claim, finding that the plaintiff’s mark is not famous. The court also dismissed the plaintiff’s claim for tortious interference with business advantage premised on an episode called “Joe Schmo Can’t Rap.” Although the plaintiff argued that the defendant knew or should have known that such episode would damage his reputation as a musician, the court held that the plaintiff failed to provide any proof to support any element of the claim. Despite granting the defendant’s motion for summary judgment, the court rejected its request for attorney’s fees.