Rock and Roll Hall of Fame v. Gentile, 1998
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
January 20, 1998
THE ROCK AND ROLL HALL OF FAME AND MUSEUM, INC.; THE ROCK AND ROLL HALL OF FAME FOUNDATION, INC., PLAINTIFFS-APPELLEES,
GENTILE PRODUCTIONS; CHARLES M. GENTILE, DEFENDANTS-APPELLANTS
Plaintiffs sought to enjoin defendants from distributing and selling posters and other products which infringe plaintiffs’ “ROCK AND ROLL HALL OF FAME” and unique building design trademark.
The Museum’s “unique and distinctive” building design was approved “for trademark and service-mark purposes” in 1996. In the same year, a professional photographer called Charles Gentile sold (through his company Gentile Productions) “a poster featuring a photograph of the Museum against a colorful sunset.” The Museum filed a trademark lawsuit contending that the photo of the building and the title of the poster “infringes upon, dilutes, and unfairly competes with” their trademarks and service mark.
The Museum argued that the photographer used “the Museum’s trademarks on posters in a manner which reflects a deliberate attempt to confuse, mislead and deceive the public into believing that the posters are affiliated with the Museum.”
Using Title Text
Does a poster with the title “ROCK N’ ROLL HALL OF FAME - CLEVELAND” infringe a trademark?
Moreover, we think Gentile’s use of these words may very well constitute a fair use of the Museum’s registered service mark, pursuant to 15 U.S.C. Section(s) 1115(b)(4). Section 1115(b)(4) permits a party to defend an infringement charge on the ground:
[t]hat the use of the . . . term, or device charged to be an infringement is a use, otherwise than as a mark . . . of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party.
hellip;the answer will essentially turn on whether consumers view the words, “ROCK N’ ROLL HALL OF FAME,” as a label for Gentile’s photograph, or as an indicator that Gentile’s photograph originated with or was sponsored by the Museum. As always, the touchstone will be the likelihood of consumer confusion.