While the television series The Walking Dead took a break this summer, Robert Kirkman, the creator of The Walking Dead, has been battling a disturbance of his own. A restaurant in New Jersey has infringed on Kirkman’s owned trademarks for The Walking Dead. The team made up of four business partners, Phillip Theodorou, Steven Theodorou, Anna Theodorou, and Mohamed Elkady used the exact mark of The Walking Dead. There is no argument as to whether the partners used a likeliness of the trademark, they stipulate to the fact that they did in fact use the mark. Their argument for why they are able to lies with their allegations that Kirkman was not using his trademark properly.
The business partners have allegedly filed eleven separate trademark applications for use of The Walking Dead mark. Kirkman owns four federal trademark regulations for The Walking Dead mark, which include trademarks on his creation for a variety of items, including, but not limited to; The Walking Dead television show on AMC, The Walking Dead comic series, merchandise (clothing, cups, key chains, posters, etc.) and subsequent ventures. AMC has a license with Kirkman, though for the trademark infringement in the present case AMC has no trademark interests with the restaurant battle.
In this particular case, Defendants conceded to the fact that they have taken steps to use The Walking Dead mark without Kirkman’s authorization in regards to their New Jersey restaurant and sale of “knick knacks”. The Defendants do not argue that the use of Kirkman’s protected “The Walking Dead” name will lead to confusion, however they argue that the decade long ownership of the four registrations are invalid. Defendants attempted to register the mark The Walking Dead on December 2, 2013, more than seven months from when Kirkman filed an application for mark on April 22, 2013.
The suit further alleges that the Defendants filed applications with USPTO to register trademarks owned by or associated with well-known individuals and companies, including the Beastie Boys (“No Sleep Till Brooklyn”); Donald Trump (“Make America Great Again”); United Trademark Holdings (“Zombie Cinderella”); and the National Hockey League (“Brooklyn Islanders”). The Defendants have shown a pattern of piggy-backing off of the creations of others.
Kirkman’s lawsuit asserts unfair competition, trademark dilution and deceptive/unfair trademark practices. In the brief, Kirkman’s attorney argues that Kirkman’s trademarks are valid and recognized by USPTO. The Defendants argue a matter of copyright law despite citing solely to trademark issues. The Defendants further argue priority through a “prior use” argument (clearly untrue) and a “crowded field” argument aimed to argue the invalidity of Kirkman’s marks. Lastly, the Defendants further allege that Kirkman’s mark is not descriptive, and that he misused the ® symbol.
While these arguments may sound good on paper, they are laughable at best. There is no argument as to whether Kirkman has four registered trademarks filed and accepted by the USPTO. Crowding the field with trademarks that cover a range of ideas and products is not a legal argument. Kirkman has different marks, again recognized by the USPTO which cover the television show, comic, and various merchandise. The Defendant’s argument of prior use can be put to bed when anyone looks at when the marks were filed and then accepted by the USPTO. Kirkman, who created his The Walking Dead franchise, filed an application at least seven months before Defendants. The Defendants’ argument pertaining to the ® symbol’s misuse by Kirkman is also unfounded. The Walking Dead is a registered trademark owned by Robert Kirkman and he has not been misusing the symbol, nor have the Defendants shown how he may have misused it. Kirman will likely prevail in his suit against the Defendants seeing as though they have neglected to make one solid legally based argument they can support.