By now, if you spend any time on the internet, you have probably seen a headline that reads something like this: “Christian heavy metal band files trademark infringment suit against massive company, Netflix.” Such headlines have littered message boards, Facebook feeds, and news outlets everywhere, followed by plenty of commentary from fans of both sides. Noticeably absent from these discussions is the question: “What are the actual merits of the case?” To understand that, you have to understand how trademark law works, and specifically how a court determines a trademark infringement case.
Trademark Protection 101
Trademark protection, at its core, is protection of a company’s (or band’s) brand. To have trademark protection, you need to (i) have a distinctive trademark, (ii) use it as a source indicator, (iii) actively use it in commerce in association with goods or services, and (iv) have priority of use against other users, meaning that you used it first. Once a trademark user checks all of these boxes, they have common law trademark rights. Those rights can then be amplified by obtaining a trademark registration with the USPTO, providing nationwide rights in the mark and acting as prima facie evidence of a valid trademark, which Demon Hunter has done here.
So Demon Hunter has a valid, nationwide trademark for their mark “Demon Hunter” and Netflix used that mark. It’s an open and shut case for infringement, right. Well, as with most things, it can never be quite that black and white. To assess the existence of trademark infringement, courts evaluate whether there is a “likelihood of confusion” between the two marks being compared.
The Likelihood of Confusion Test
The Likelihood of Confusion Test is, at its core, exactly what it sounds like. It is a test used to determine whether the general consuming public is likely to confuse one mark for the other. This may sound simple enough, but the analysis is often more involved than just a surface level comparison. Courts consider a number of factors in making this determination, such as the similarity of the marks, the similarity of the goods and services, evidence of actual confusion, similarity of marketing chanels, and others, weighing the factors together to determine whether infringment exists.
Using those factors in the present case certainly appears to paint a plausible argument for infringement. The marks in question, “Demon Hunter” and “KPop Demon Hunters” are virtually identical, absent the “KPop” differentiation and plural form of “Hunters” which tends to lean in favor of there being a likelihood of confusion. It is noteworthy that while the actual band in the latter movie and live shows operates under a different name, Netflix is presently advertising the shows, soundtracks, and other information under the main “KPop Demon Hunters” mark, making this the proper comparison.
Looking then to the goods and services, both markholders provide live performances, merchandise, streaming music, and similar goods and services, which would also trend towards a finding of a likelihood of confusion. From many comments on this suit, one of the biggest questions I have seen has been “How is there confusion between a band and a Netflix movie?” I think there is some merit there, and that actually illustrates the potential infringement here perfectly. Had Netflix stuck purely to its streaming service instead of publishing the music and then launching a large live music tour, perhaps this suit never happens. However, once one mark user delves into the market of another, the likelihood of infringing the other’s trademark amplifies significantly.
Lastly, and not to be undersold, is the evidence of actual confusion amongst consumers. Actual confusion is an incredibly powerful factor, frequently supporting preliminary injunctions and forming the bedrock of many trademark infringment cases. As it is pled in the complaint, there are multiple instances of consumers intending to purchase tickets to one show but mistakenly purchasing tickets to the other. This by itself tends to provide even more weight to a finding that there is in fact a likelihood of confusion between the marks.
So, What’s the Verdict?
So, who wins here? Is it the long running Christian metal band formed in the early 2000’s or the massive multi-billion dollar corporation? Looking at the weight of these factors, there appears to be a strong argument in favor of a finding of a likelihood of confusion between the marks. This means that this dispute may very well boil down who was using the mark first, which in this case would be the Plaintiff Demon Hunter by north of 20 years. Does this guarantee that Demon Hunter will succeed in its suit? Not necessarily, as I don’t think we’re nearly deep enough into this case to affirmatively make that call. In the very least, however, weighing the factors above, I believe that Demon Hunter has more than a fighting chance in this David and Goliath-esque legal battle. Only time will tell if that holds true.
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