Tuesday, March 11, 2008

A Trademark Battle of the Brains

Exodus Film Fund I, LLC (“Exodus”), under the name Exodus Film Group, is the producer of an animated motion picture titled “Igor” scheduled to be released in October 2008. One of the characters created by Exodus in connection with the movie is “Brian the Brain” (pictured below), described as “a scientific lab experiment consisting of a brain floating in a jar filled with liquid that sits on top of a base, who is frustrated because the label of the jar reads ‘Brian’ instead of ‘Brain,’ hence the name ‘Brian the Brain.’”

Exodus claims to have been using the BRIAN THE BRAIN character continuously since July 15, 2005, in connection with its animated motion picture and related collateral products and merchandise. On September 28, 2007, Exodus filed a Section 1(b) intent-to-use application to register the design mark for various goods related to its pending animated movie. That application is still pending.

On March 7, 2008, Exodus filed an opposition against Mega Brands International (“MBI”) opposing the registration of two of MBI’s pending trademark applications for the word mark BRIAN THE BRAIN (one for interactive electronic educational game machines and one for apparatus containing software featuring educational learning device). See Exodus Film Fund I, LLC v. Mega Brands International, Oppositions No. 91182864 and 91182865 (T.T.A.B.). Copies of the Notice of Opposition in each case can be downloaded here and here. MBI filed its two trademark applications as intent-to-use applications on March 9, 2007 -- one was published for opposition on September 11, 2007, while the other was published for opposition on March 4, 2008.

Exodus’ opposition notes that while MBI filed its trademark applications as intent-to-use and the applications are only for the word mark BRIAN THE BRAIN, MBI is actually currently using its mark in commerce by selling its BRIAN THE BRAIN educational toy (pictured above) through its own website as well as on Amazon.com and The Sharper Image. Exodus argues that MBI’s BRIAN THE BRAIN character of a brain in a jar sitting on a base is confusingly similar to Exodus’ own BRIAN THE BRAIN character.

Exodus argues that through its promotion of its animated film at conventions, to financiers, to distributors, and general publicity about the film, Exodus' BRIAN THE BRAIN character has come to be associated exclusively with Exodus. As such, Exodus argues that MBI’s applications should be refused registration based on Exodus’ priority of use (an alleged earlier use date of July 15, 2005) as well as likelihood of confusion based on the similarity in appearance and sound of the marks and similarity of goods sold under such marks (i.e., the electronic goods and toys on which MBI uses its mark are commercially related to the type of goods that Exodus asserts is likely to be potentially offered to consumers in connection with the release of its animated movie).

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