The record shows that a “zombie” is a “human … who is held to have died and been supernaturally reanimated.”
You know it’s a good day when you come across that sentence in a legal document. What caused the United States Patent Office’s Trademark Trial and Appeal Board to take notice of that fact? Read on to find out about the case of Walt Disney’s Cinderella v. Zombie Cinderella.
Kindly step all the way in please and make room for everyone. There’s no turning back now.
I’ve written about the concept of Zombie Trademarks before (see my 2013 post titled “Buffy the Zombie Trademark Slayer” – writing a legal blog is fun, kids!), but this isn’t related to that amusingly-named legal issue. Instead, it’s about a trademark application featuring the word “ZOMBIE.”
United Trademark Holdings, Inc. filed a USPTO application in 2012 to register the trademark ZOMBIE CINDERELLA for dolls. The Examining Attorney rejected the application based on likelihood of confusion with Walt Disney’s prior registration for the mark WALT DISNEY’S CINDERELLA in connection with the image found above. The USPTO Examining Attorney stated that “the shared use of the dominant wording CINDERELLA creates a highly similar commercial impression, despite the linguistic and visual distinctions pointed out by the applicant.”
Note that this trademark dispute wasn’t between the owners of two marks – Walt Disney themselves never got involved in the case. Disney didn’t oppose the ZOMBIE CINDERELLA filing; the USPTO Examining Attorney rejected it on his own.
Since they were not satisfied with the initial ruling, United Trademark Holdings appealed the matter to the TTAB. The TTAB panel found that the word CINDERELLA is both conceptually and commercially weak from a trademark perspective:
The evidence shows that the fairytale character Cinderella is an established part of our cultural fabric and enjoys extremely widespread public recognition. The record also shows, as we discuss further below, that this cultural figure has had an impact in the commercial field of dolls, and that many dolls that depict the character Cinderella have been offered in the market by unrelated businesses.
This is more or less stating that it’s difficult, if not impossible, for one party to “own” the exclusive rights to the word “CINDERELLA” for these types of goods. So what about the other elements found in Disney’s registration and the ZOMBIE CINDERELLA application? The TTAB panel wrote:
Considering both marks in their entireties, ZOMBIE CINDERELLA and WALT DISNEY’S CINDERELLA (and design), we acknowledge some similarity in appearance, sound, and meaning that arises from the shared use of the term CINDERELLA. However, in this case we find that the house mark WALT DISNEY’S and the design element in the registered mark, and the term ZOMBIE in applicant’s mark, constitute significant differences between the marks, because of the weakness of the term CINDERELLA.
So, would a consumer, encountering a ZOMBIE CINDERELLA doll, be confused into thinking it was a Disney product? The TTAB panel didn’t think this outcome was likely:
We are persuaded by Applicant’s contention that the mark ZOMBIE CINDERELLA creates a “cognitive dissonance,” involving an uneasy mixture of innocence and horror. By contrast, the registered mark creates an impression of prettiness and goodness. Even if such marks were used on identical goods, these distinct commercial impressions would be distinguishable.
So Disney loses (although, and I want to emphasize this again, they were not directly involved with this case), and the ZOMBIE TRADEMARK application rises from the dead to walk the earth in search of brains…or, failing that, sales of adorable zombie dolls.
Want more tips? Click here to download my free checklist Intellectual Property for Entrepreneurs.
