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Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd. And Michael Zaffarano

Court of Appeals for the Second Circuit
203 U.S.P.Q. (BNA) 161, 604 F.2d 200, 5 Media L. Rep. (BNA) 1814 (1979)
ELI5:

Rule of Law:

The non-functional design elements of a uniform that have acquired secondary meaning are protectable as a trademark. The use of such a trademark in a context that is likely to cause confusion as to sponsorship or approval, thereby tarnishing the mark's reputation, constitutes trademark infringement under the Lanham Act.


Facts:

  • Dallas Cowboys Cheerleaders, Inc. (DCC) employs cheerleaders who wear a distinctive and widely recognized uniform consisting of white boots, white shorts, a blue bolero blouse, and a white, star-studded vest and belt.
  • DCC has extensively promoted its cheerleaders and their uniform through television appearances, public events, and licensed merchandise like posters and T-shirts, creating strong public association.
  • Pussycat Cinema, Ltd. and its owner Michael Zaffarano produced and exhibited a sexually explicit film titled 'Debbie Does Dallas.'
  • The film's plot involves a high school cheerleader, Debbie, who seeks to become a 'Texas Cowgirl.'
  • In the film's final scene, the main character wears a uniform that is strikingly similar to the DCC uniform while engaging in various sexual acts.
  • The film was advertised with marquee posters featuring the main actress in the infringing uniform alongside captions like 'Starring Ex Dallas Cowgirl Cheerleader Bambi Woods,' although the actress had no affiliation with DCC.

Procedural Posture:

  • Dallas Cowboys Cheerleaders, Inc. filed suit against Pussycat Cinema, Ltd., and Michael Zaffarano in the U.S. District Court for the Southern District of New York.
  • The complaint alleged trademark infringement, unfair competition, and trademark dilution.
  • The plaintiff moved for a preliminary injunction to stop the defendants from distributing or exhibiting the film.
  • The district court granted the plaintiff's motion for a preliminary injunction.
  • The defendants (appellants) appealed the district court's order to the U.S. Court of Appeals for the Second Circuit.

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Issue:

Does the use of a cheerleader uniform that is strikingly similar to the Dallas Cowboys Cheerleaders' trademarked uniform in a sexually explicit film and its advertising constitute trademark infringement under the Lanham Act?


Opinions:

Majority - Van Graafeiland

Yes, the use of a cheerleader uniform strikingly similar to the Dallas Cowboys Cheerleaders' in a sexually explicit film constitutes trademark infringement. A uniform's specific combination of colors and arbitrary decorations can be a valid, non-functional trademark if it has acquired secondary meaning. The court found that while a uniform is functional as clothing, the particular design of the DCC uniform is arbitrary and serves to identify its source. The use of a nearly identical uniform in the film creates a likelihood of confusion, not necessarily that DCC produced the film, but that it sponsored or approved of it. This association with a 'sexually depraved film' irreparably harms and tarnishes the plaintiff's business reputation, which the Lanham Act aims to protect. The defendants' First Amendment arguments fail because a trademark is a property right that does not need to yield to speech where adequate alternative avenues of communication exist.



Analysis:

This case is significant for extending trade dress protection to a uniform, confirming that a combination of otherwise functional elements can create a distinctive and protectable mark. It broadened the 'likelihood of confusion' analysis to explicitly include confusion about sponsorship or affiliation, which is particularly crucial in cases of trademark tarnishment. The decision strengthens the ability of trademark owners to protect their brand's reputation against unauthorized associations with sexually explicit or other unwholesome content. It also clarifies that First Amendment defenses are limited when they involve the appropriation of a property right like a trademark, especially when the infringer has alternative ways to express their message.

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