Robert Kirkman, creator of The Walking Dead, faced a setback Wednesday, November, 30, 2016 when a judge denied his company’s motion for summary judgement in a trademark liability suit. Last year, the company filed suit against four entrepreneurs who had filed numerous trademark applications to the U.S. Patent and Trademark Office to register the mark “The Walking Dead.” The defendants’ 11 patent applications were connected to various goods and services including t-shirts, bottled water, coffee, and other “themed restaurant services.”
Currently, the company owns four federal trademark registrations and has one pending use-based application. Upon learning of the defendants’ applications, counsel for the company sent a letter for the defendants demanding that they stop attempting to register the mark. Due to these filings, the U.S. Patent and Trademark Office blocked the company’s trademark application from proceeding to registration.
The company moved for summary judgment, alleging violations of the Lanham Act. The New Jersey court found that despite the company’s extensive and well-reasoned analysis it could not grant summary judgment on liability where the company failed to show the Defendants used the Mark in actual commerce. Further, due to its reliance on inapposite case law and application of a lower intent to use standard, the court stated that it was not persuaded the company was entitled to relief.
As the company reasoned in its brief, this case appears to be a classic example of trademark infringement and dilution which the Lanham Act was designed to prohibit. According to the judge, “Plaintiff must clearly set forth the standard and cite to relevant, analogous authority in support of its request for relief.” The request for declaratory judgment was denied without prejudice, suggesting a more thorough application of case law could lead to a victory for the company moving forward.