Trademark Suit Blocks “Age of the Hobbits” Mockbuster Release

Court: Only One Hobbit Film Will Debut this Week.
UK Postage Stamp Depicting Scene from “The Hobbit.” 

On December 10, 2012, a federal court in Los Angeles, California entered a restraining order delaying the release of “Age of the Hobbits,” a so-called “mockbuster” film that was scheduled to debut just three days before the U.S. premiere of “The Hobbit: An Unexpected Journey.Warner Brothers Entertainment v. The Global Asylum, Inc., No. 12-cv-9547 (C.D. Cal. Dec. 10, 2012).

The plaintiffs, Warner Brothers Entertainment, New Line Cinema, Metro-Goldwyn-Mayer Studios, and The Saul Zaentz Company (SZC ), own the exclusive rights to produce and distribute films based on “The Hobbit” and “The Lord of the Rings” novels written by Oxford don J.R.R. Tolkien. SZC also owns several trademark registrations that use the word “hobbit”–a race of mythical, diminutive creatures featured prominently in Tolkien’s fiction set in a long-ago age known as Middle Earth. The plaintiffs previously produced and marketed the hugely successful “Lord of the Rings” trilogy of films. On December 16, 2012, they are scheduled to release “An Unexpected Journey,” the first of three films to be based on “The Hobbit.”

The defendant, The Global Asylum, Inc., is a film production company that is known for producing “mockbusters”–which the court described as “cheaper parodies of major films that often have titles very similar to major releases.” One of Global Asylum’s newest films, titled “Age of the Hobbits,” is a low-budget film about a village of small, peace-loving people in an ancient age who are attacked by dragon-riding cannibals. Media coverage of the mockbuster film described it as “a fantasy tale inspired by J.R.R. Tolkien’s The Lord of the Rings.” “Age of the Hobbits” was scheduled for release on December 11, 2012.

The plaintiffs sued Global Asylum for trademark infringement, false designation of origin, trademark dilution, false advertising, and unfair competition. Among other things, they contended that the title “Age of the Hobbits” was confusingly similar to “The Hobbit: An Unexpected Journey,” and that its release was timed to free-ride on the international promotional campaign for the authorized Hobbit movie. The plaintiffs introduced into evidence a survey showing that 47.75 percent of 400 randomly-selected respondents associated the term “Hobbit” with SZC, d/b/a “Tolkien Enterprises” and Tolkien properties. A separate survey conducted by Nielsen National Research Group showed that approximately 30 to 40 percent of survey respondents were confused about the source of “Age of the Hobbits.”

For its part, Global Asylum argued that its movie title was not confusingly similar to the plaintiffs’ title. In granting the plaintiffs’ request for a temporary restraining order barring the release of Global Asylum’s film under the title “Age of the Hobbits,” the court squarely rejected this argument. The court wrote:

Here, the mark at issue is the word “Hobbit.” “Hobbit” is a trademarked word that Asylum uses in its movie title. The marks are therefore not only similar but identical. Moreover, the imagery surrounding the use of the mark is similar, thus increasing the possibility of confusion. Asylum’s poster for “Age of Hobbits” shows the word “Hobbit” with an image that features two characters holding weapons in the center, with fire-breathing dragons, a hooded figure, a mountain, and fire in the background, and a battle scene in the foreground…. This imagery is similar to several posters produced by New Line for “The Hobbit: An Unexpected Journey” and “The Lord of the Rings Trilogy.” … The promotional materials for “The Hobbit: An Unexpected Journey” and “The Lord of the Rings Trilogy” feature characters holding mythical weapons, mythical creatures such as dragons, battle scenes, mountains, and fire, among other images that are similar to those used to promote Asylum’s film.

Plaintiffs cannot claim exclusive rights to the images described above—fantastical images of swords, mythical creatures, and the like…. However, the question is whether, viewing the marks in their entirety as they appear in the marketplace, “the total effect of [Asylum’s] product and package on the eye of the ordinary purchaser” is likely to cause confusion…. Here, viewing the imagery in the posters in connection with the use of the term “Hobbit” in the title “one is immediately struck by the[] similarity” between the two images…. Given the similar overall appearance of the posters and the prominent use of the trademarked term, the Court has “no difficulty concluding that the marks are overwhelmingly similar.”

Based on this finding, the relatedness of the goods offered by the parties, the similarity of ther marketing channels, and Global Asylum’s admission “that the temporal proximity of the release dates was ‘not a coincidence,'” the court found that confusion was likely. The court also determined that the plaintiffs would likely be irreparably harmed absent a restraining order, and the balance of hardships to the parties supported the entry of such an order. Therefore, the court ordered that Global Asylum and its related parties “refrain from advertising, selling, or otherwise distributing any film with the title ‘Age of Hobbits’ or using any other title, name, or mark that is confusingly similar to the trademarks ‘The Hobbit,’ and ‘Hobbit’ or to the title of plaintiffs’ film, ‘The Hobbit: An Unexpected Journey.” The court scheduled a hearing for January 28, 2013 to determine whether to convert the restraining order into a preliminary injunction.

by Shawn N. Sullivan, Dec. 11, 2012.

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