“Nobody puts Baby in a corner,” snarls Patrick Swayze, as he hauls Jennifer Grey onto the dance floor in the climactic scene of the 1987 cult classic Dirty Dancing. It’s become the movie’s signature quote, and now it’s at the centre of a whole new legal drama.
Lions Gate Entertainment, the independent film producer and distributor that owns the rights to the film, has filed suit against New York City-based baby clothing manufacturer Urban Smalls Corp. and 14 other companies for selling merchandise that features the catchphrase, claiming they’re infringing the Dirty Dancing trademark.
The lawsuit is a warning shot aimed towrard the hundreds of small retailers who sell clothes and memorabilia based on movie lines and characters, without approval. But Lions Gate may have a tricky time proving its case. “The touchstone for trademark law is consumer confusion,” says UCLA law professor Kal Raustiala. He thinks the studio’s problem will be proving that people are really confused as to whether they’re buying officially licensed products. “It’s not enough to just say, ‘Hey, this happens to be a line from the film, therefore we own the trademark.’ The mere fact that it’s a line from the film
doesn’t give them total control over it.” Carole Handler, the vice-chair of intellectual property litigation at Los Angeles law firm Foly & Lardner LLP, agrees and notes that the phrase itself isn’t trademarked. “Whether the use of this line is a direct infringement of the trademark Dirty Dancing, that is a bit of an intellectual stretch,” she says. Handler thinks the portion of the suit in which Lions Gate seeks relief under the federal unfair competition law may be more successful. “That deals simply with creating a likelihood of confusion, and there you don’t need a registered mark.”
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